* Pursuant to 5TH CIR. R. 47.5, we have 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not be published and is not precedent except under the limited circumstances set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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-50629

Summary Calendar

_______________

SIMONA M. MEDRANO,

Plaintiff-Appellant,

VERSUS

SHUFFIELD NURSING HOME, INCORPORATED,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(A-95-CV-658)

_________________________

January 10, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Simona Medrano appeals a summary judgment in favor of

Shuffield Nursing Home, Incorporated, on her discrimination claim

under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§§ 621-634 (1988). Finding no error, we affirm.
2 Among those noting Medrano’s poor documentation was the Texas Department

of Human Services (“TDHS”) during a January 1995 inspection of the facility.

Shuffield was given 45 days to either remedy all of its deficiencies, including

its documentation problems, or be closed by TDHS. 

2

I.

Medrano, a sixty-one-year-old woman, had been employed by

Shuffield as the nursing home floor charge nurse for nearly five

years prior to her re-assignment to Shuffield’s Restorative Care

Program (“RCP”). According to Shuffield, it had received numerous

complaints about Medrano’s charting and documentation of patient

records, for which Medrano was verbally reprimanded and given

written warnings, and decided to transfer her to the RCP to avoid

having to terminate her employment.2 Medrano received the same

benefits and maintained identical work hours in the RCP position as

she had previously as a charge nurse.

Medrano contends that the re-assignment to the RCP was a

demotion motivated by Shuffield’s belief that she was too old to

perform satisfactorily her functions as charge nurse. As a result

of the transfer, Medrano asserts, she was unable to perform the

duties necessary to maintain her skills as a licensed vocational

nurse and thus was forced to, and did in fact, resign her employment in June 1995.

Medrano filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that Shuffield’s actions in

transferring her to the RCP violated the ADEA. The EEOC issued a

right to sue letter in July 1995, and Medrano filed this action in
3 Medrano’s attorney subsequently petitioned the court to reconsider its

summary judgment motion, arguing that she had “mis-calendered” the reply date for

her summary judgment opposition brief. According to the attorney, she believed

erroneously that she had 20 days from Shuffield’s filing of its motion for

summary judgment to file her response, when in fact the local rules for the

Western District of Texas allow 11 days. See W.D. TEX. LOCAL RULE CV-7(f).

Medrono’s attorney protested that she was unfamiliar with the local rules, but

the court noted that she had been admitted to practice in the district and that

to be admitted, she had certified that she had read, was familiar with, and

complied with all local rules. The court denied the motion to reconsider, and

that order has not been appealed.

3

October 1995. After Shuffield filed its motion for summary

judgment and Medrano failed to file a response within the allotted

time, the court granted Shuffield’s motion.3

II.

We review a grant of summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” FED. R. CIV. P. 56(c). 

To establish a prima facie case of discrimination under the

ADEA, the plaintiff must prove that (1) she is in the protected

group; (2) she has been adversely affected by an employment

decision; (3) she was qualified to assume another position at the

time of the discharge; and (4) she was replaced by someone outside

the protected group, replaced by someone younger, or otherwise

discriminated against based upon age. See Rhodes v. Guiberson Oil
4

Tools, 75 F.3d 989, 992 (5th Cir. 1996) (en banc). Once she has so

done, the employer must proffer a legitimate, non-discriminatory

reason for the employment action. If the employer does so, the

plaintiff must prove that this non-discriminatory reason is a mere

pretext. See id. at 992-93.

The district court concluded correctly that Medrona had failed

to establish her prima facie case of age discrimination. Although

Medrona asserted that she was within the protected class at the

time of the alleged discrimination, she presented no evidence to

support the other three elements of her prima facie case. In

contrast, Shuffield presented ample summary judgment evidence

tending to show (1) that Medrona was not qualified for the charge

nurse position, as evinced by the numerous complaints regarding her

documentation; (2) that she was not adversely affected by the

transfer, as she received the same benefits and worked the same

hours; and (3) that many other licensed vocational nurses over the

age of forty continued working on the nursing home floor after

Medrona had been transferred.

The district court further noted that, even assuming Medrona

had carried her burden to produce the prima facie case, Shuffield

had presented a legitimate, nondiscriminatory justification for the

transferSSnamely, Medrona’s poor charting and documentation

performance. Medrona presented no evidence suggesting that

Shuffield’s proffered justification was merely a pretext for
5

discrimination. 

AFFIRMED.