* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-20169

Summary Calender

_______________

LUCILLE L. LAPAGLIA,

Plaintiff-Appellant,

VERSUS

AIR LIQUIDE AMERICA CORPORATION,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(96-CV-2216)

_________________________

September 11, 1997

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Lucille Lapaglia appeals a summary judgment entered on her age

and disability discrimination claims against Air Liquide America

Corporation (“ALAC”). Finding no error, we affirm. 

I.
2

Lapaglia worked as the Fleet Department Secretary at Big Three

Industries from 1983 until February 1994, performing numerous

administrative duties, including, among other things, leasing,

licensing, titling, and registering the company’s fleet of

vehicles. She received training and was given greater amounts of

responsibility as she gained experience. She excelled in her job,

and her superiors spoke highly of her.

Sometime prior to 1994, ALAC acquired Big Three Industries and

merged it with one of its subsidiaries, Liquid Air. The new

company implemented a plan for downsizing, and Lapaglia was

released. Shortly after her release, Lapaglia learned that ALAC

was hiring new employees. Although she applied several times for

various positions, she was never rehired.

Lapaglia filed the instant action in July 1996, alleging that

ALAC refused to hire her because she is fifty-three years old. She

also contends that she is being denied employment because of her

relationship and association with her husband, an individual with

a known disability. The district court granted summary judgment

for ALAC.

II.

Lapaglia applied for, and was rejected for, ten different

positions. She alleges violations of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Age
3

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,

corresponding to each denial. 

We reviews 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). 

A.

Lapaglia’s first claim arises from her application for

employment with ALAC as a licensing and fuel tax assistant. She

was rejected for this position in March 1994 but waited until

November 22, 1995, to file her Charge of Discrimination with the

Equal Employment Opportunity Commission (“EEOC”). Because she

filed her claim well after the 300-day statute of limitations, see

29 U.S.C. § 626(d)(2), the claim is time-barred. See Fisher v.

Procter & Gamble Mfg. Co., 613 F.2d 527, 540 (5th Cir. 1980).

B.

We review Lapaglia’s remaining claims under the burdenshifting format of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396
4

(5th Cir. 1995) (applying McDonnell Douglas to ADA actions);

Lindsey v. Prive Corp., 987 F.2d 324, 326, n.5 (5th Cir. 1993)

(applying McDonnell Douglas to ADEA actions). Under this approach,

the plaintiff must first make out a prima facie case of

discrimination. See McDonnell Douglas, 411 U.S. at 802. If he

meets this burden, the burden then shifts to the defendant to

proffer a legitimate, nondiscriminatory reason for its decision.

See id. If the defendant is so successful, the burden then reverts

to the plaintiff to prove with “a new level of specificity” that

the defendant’s reason is a pretext for discrimination. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 516 (1993).

To prove her prima facie case, Lapaglia must demonstrate

(1) that she belongs to a protected class; (2) that she applied and

was qualified for a job; (3) that despite her qualifications, she

was rejected; and (4) that after her rejection, the position

remained open while the employer continued to seek applicants from

persons of complainant’s qualifications. See McDonnell Douglas,

411 U.S. at 802. Among the jobs for which Lapaglia applied was a

position in the fleet department similar to her previous job with

Big Three Industries. She learned about the position from a friend

and former supervisor, Jim Mew, who instructed Lapaglia to contact

Ray Sidenblad, the current fleet manager, about the position.

Although Lapaglia did so, Sidenblad never returned her call.

Lapaglia now asserts that discrimination alone explains his
5

failure to return her calls. In fact, ALAC submitted evidence

demonstrating that no one was hired to fill this position. The job

was posted by Sidenblad’s predecessor, but he decided eventually

that the position was unnecessary. Because Lapaglia failed to

prove that after her rejection the job remained open and that

similarly qualified applicants were considered, she has not made

out her prima facie case.

Lapaglia next applied for a position as a telephone operator.

After being informed by a current employee of ALAC that one of the

telephone operators had relocated, Lapaglia contacted Ron Speer

about the position. Speer never returned her call.

Again, Lapaglia asserts boldly that discrimination is the only

explanation for his actions. ALAC proffered uncontested summary

judgment evidence demonstrating that the currently-employed

operator changed locations only, and thus a new position never

became available. Lapaglia has failed, therefore, to establish an

element of her prima facie case.

The next dispute involves a temporary position with the

cryogenics department at ALAC. The parties dispute whether

Lapaglia or Mew contacted the other first about the job, but in any

event, Mew informed Lapaglia that he was authorized to hire only a

temporary worker to fill the position. Lapaglia rejected this

position, because she desired full-time employment.

Although Lapaglia admits that she turned down the position,
6

she argues that ALAC’s “temporary position story” was concocted to

coerce her into rejecting the job. Nothing but wild speculation

and conjecture support her allegations. Because rejection is an

element of her prima facie case, Lapaglia’s discrimination claim

fails.

Lapaglia’s next claim stems from the same temporary cryogenics

position. Six weeks after she rejected the temporary position with

the cryogenics lab, Mew received permission to convert the

temporary position into a permanent one. Mew informed Lapaglia of

this change and allowed her to submit a resume. Subsequently, Mew

decided to hire permanently Virginia Holcomb, the same person who

had held the temporary position, noting that Holcomb had done an

excellent job and that her retention would help reduce ALAC’s

training costs. 

Assuming arguendo that Lapaglia has satisfied the prima facie

case, Mew’s explanation for the Holcomb hire is sufficiently

neutral and non-discriminatory. Under the McDonnell Douglas

approach, Lapaglia must now prove with “a new level of specificity”

that the reason offered by ALAC is a pretext for discrimination.

See McDonnell Douglas Corp., 411 U.S. at 802. As she has presented

no evidence of pretext, Lapaglia has failed to carry this burden.

See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996

(en banc) (noting that to avoid summary judgement in an ADEA case,

the plaintiff must put forth substantial evidence that (i) creates
7

a fact issue as to whether each of the employer’s stated reasons

was what actually motivated the employer and (ii) creates a

reasonable inference that age was a determinative factor in the

actions of which plaintiff complains).

Lapaglia also applied for four positions with ALAC that were

advertised in the Houston Chronicle. One of the positions

specifically requested that applicants speak French, which

Lapaglia did not. Thus, she was not qualified for this position.

Another position advertised in the Houston Chronicle was a

secretarial position with Marty Buckley. Consistent with ALAC’s

policy to source candidates from within the organization whenever

possible, Buckley did not consider external applicants. Lapaglia

does not dispute Buckley’s decision to promote internally, nor has

she proffered any evidence suggesting that Buckley’s decision to

hire an internal candidate was a pretext for improper reasons. The

district court correctly granted summary judgment. 

With respect to the other two positions that were advertised

in the Houston Chronicle, Lapaglia asserts only that she was never

hired for them. She has not demonstrated that she was qualified

for them, nor that after she was rejected the position remained

open to others with similar qualifications. Without such evidence,

Lapaglia has failed to prove her prima facie case.

Lapaglia also applied for a secretarial position with Gregg

Alexander, a position that expressly called for an executive
8

secretary with skills in the areas of treasury and finance.

Notably absent from Lapaglia’s resume were such skills.

Furthermore, Lapaglia’s resume was devoid of any executive

secretarial experience in the last twelve years.

But even assuming arguendo that Lapaglia was qualified for the

position, ALAC has proffered a legitimate, nondiscriminatory reason

for hiring Cathy Howell, an external applicant. A Certified

Professional Secretary, Howell had worked for the previous seven

years as a secretary or executive assistant to corporate executives

and had experience working in the finance and treasury areas. She

also had worked with professional accounting firms for seven of the

previous eight years. 

Alexander proffered Howell’s outstanding qualifications as a

nondiscriminatory reason for his decision. Lapaglia has presented

no evidence suggesting that this reason is pretextual or that

creates an inference of discrimination. See Rhodes, 75 F.3d

at 994. She has failed, therefore, to create a fact issue

regarding this claim. 

Lapaglia also applied for a secretarial position with Tim

Bruce, which position was ultimately filled by Judy Truelove, an

executive secretary for ALAC for the past seven years. Before

that, Truelove had worked six years as the administrative assistant

to the president of a real estate development company, and she had

almost fifteen years' experience as an executive secretary. In
9

contrast, Lapaglia’s resume did not describe any executive

secretarial experience. 

 Except for Lapaglia, Bruce looked at internal applicants

only. ALAC proffers as its nondiscriminatory reason for not hiring

Lapaglia its policy of hiring the most qualified person for the job

and of promoting existing employees. Lapaglia has put forth no

evidence demonstrating that these reasons are pretextual.

Furthermore, Truelove is older than Lapaglia. 

When Lapaglia discovered that Truelove had been promoted to be

Bruce’s secretary, she applied immediately for the vacancy left by

Truelove in Wayne Bowman’s office. She has offered no evidence,

however, that this position was ever posted or that anyone was ever

hired to replace Truelove. Because she has not carried this

burden, she has failed to establish her prima facie case for this

claim. 

C.

Even assuming arguendo that Lapaglia has satisfied her burden

of presenting a prima facie case with respect to any of her claims,

she has presented no evidence suggesting that her denial for any of

the positions was based upon her age or her association with her

disabled husband. To prove pretext, Lapaglia first pointed to a

1992 executive meeting during which ALAC presented a single slide

that described the need to hire a computer systems person younger
10

than age 35 and to enhance a pilot region team with “some young

high caliber people.” ALAC eventually deleted all references to

age in the slide show and never implemented the plan. Not only are

isolated, accidental, or sporadic discriminatory acts insufficient

to establish the existence of a pattern or practice, see Goff v.

Continental Oil Co., 678 F.2d 593, 597 (5th Cir. 1982), but

Lapaglia has failed to demonstrate any nexus between the positions

for which she applied and this purported evidence of age

discrimination, see Lo v. Federal Deposit Ins. Corp., 846 F. Supp.

557, 564 (S.D. Tex. 1994) (citing Turner v. North Am. Rubber, Inc.,

979 F.2d 55, 59 (5th Cir. 1992)) (stating that “to rise above the

level of a stray mark and constitute direct evidence of

discrimination, a remark must (1) be made by the decision maker or

one whose recommendation is sought by the decision maker; (2) be

related to the specific employment decision challenged; and (3) be

made close to the time to the decision.”), aff’d, 52 F.3d 1066 (5th

Cir. 1995).

Lapaglia also proffered a June 1993 memo that discussed the

changing work force and the need to entrust positions of

responsibility to young workers. This memo made no mention of any

forbidden hiring or employment practices, but rather identified the

need to bring into the fold new ideas, new business opportunities,

entrepreneurs, and creative hires to facilitate the company’s

urgent need to grow and increase growth in sales and profits. The
11

memo described ALAC’s previous mindset of restricting important

responsibilities to employees over age 40 and suggested a change in

this mindset by entrusting younger employees with greater amounts

of responsibility. If anything, the memo supports an inference

that ALAC preferred older workers in the past. In any event,

absent Lapaglia’s demonstration of a nexus between the 1993 memo

and her failed hiring attempts in 1995, the evidence has no

demonstrated relevance to her claims. See Lo, 846 F. Supp. at 564.

Because Lapaglia has created no genuine issues of material

fact concerning any of her discrimination claims, we AFFIRM.