* 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that this opinion should not be published and is not precedent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. 01-21201

Summary Calendar

 

CRAIG RANG,

Plaintiff-Appellant,

versus

SCHLUMBERGER TECHNOLOGY CORPORATION,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CV-4388

--------------------

October 21, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In this appeal, plaintiff argues that there are disputed

material facts in existence regarding the following issues: (i)

whether plaintiff has satisfied the prima facie elements of his

ADEA case; (ii) whether defendant’s proffered legitimate

nondiscriminatory reason for terminating plaintiff was mere

pretext for illegal age discrimination; (iii) whether defendant

engaged in illegal retaliation; (iv) whether plaintiff was
No. 01-21201

-2-

wrongfully discharged under Montana law; (v) whether defendant’s

covenant not to compete to which plaintiff agreed is valid; and

(vi) whether the district court abused its discretion during

discovery.

The district court appropriately concluded that plaintiff is

unable to satisfy the prima facie requirements of his ADEA claim. 

To establish his prima facie case, plaintiff must prove: (1) that

he was discharged; (2) that he was qualified for his position;

(3) that he was within the protected class; and (4) that he was

(a) replaced by someone outside the protected class, or (b)

replaced by someone substantially younger, or otherwise

discharged because of his age. See Rhodes v. Guiberson Oil

Tools, 75 F.3d 989, 992 (5th Cir. 1996); Reeves v. Sanderson

Plumbing, 530 U.S. 133 (2000). Plaintiff’s argument is limited

to his assertion that defendant’s employment evaluations were

incorrect, rather than identifying facts supporting his claim

that he was discharged because of his age or replaced by someone

younger. Plaintiff’s assertions cannot adequately support his

ADEA prima facie case.

Even if plaintiff could satisfy the ADEA’s prima facie

elements, his ADEA claim would not prevail because he cannot show

that defendant’s legitimate nondiscriminatory reason—i.e.,

reduction in force—was mere pretext for illegal discrimination. 

Plaintiff essentially disputes defendant’s assessment of his work

performance, which under established precedent is insufficient to
No. 01-21201

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support an inference of pretext. See Shackelford v. Deloitte &

Touche, L.L.P., 190 F.3d 398, 408 (5th Cir. 1999); see also Vadie

v. Mississippi State Univ., 218 F.3d 365, 374 (5th Cir. 2000)

(holding that a plaintiff can avoid summary judgment in an age

discrimination case only if the evidence: (1) creates a factual

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

what actually motivated the employer; and (2) creates a

reasonable inference that age was a determinative factor in the

actions of which plaintiff complaints). Furthermore, defendant’s

rehiring of another individual with higher performance ratings is

insufficient to prove pretext. See id.; see also Wyvill v.

United Companies Life Ins. Co., 212 F.3d 296, 301 (5th Cir.

2000).

Plaintiff’s claim for retaliation also fails, as the

relevant ultimate employment action—plaintiff’s being

terminated—occurred prior to any protected activity. 

Furthermore, the record is devoid of any evidence of causation or

retaliatory animus with respect to a claim of retaliation. See

Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997);

Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995); Sharp v.

City of Houston, 164 F.3d 923, 933 (5th Cir. 1991).

Plaintiff’s wrongful discharge claim also was properly

dismissed because that cause of action, by its terms, does not

apply to a discharge “that is subject to any other state or

federal statute that provides a procedure or remedy for
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contesting the dispute. Such statutes include those... that

prohibit unlawful discrimination based on... age.” Mont. Code §

39-2-912; see also Tonack v. Montana Bank of Billings, 854 P.2d

326, 331 (Mont. 1993). Plaintiff’s sole theory of recovery for

his termination is based on an allegation of age discrimination. 

As the ADEA covers such charges of discrimination, the Montana

wrongful termination statute, by its terms, cannot. See id.

It is also clear that the covenant not to compete in issue

here is acceptable under Montana law. Under Montana law,

covenants not to compete are enforceable when they (i) are signed

at or near the onset of employment; (ii) are limited in time or

geographic scope; (iii) are based upon good consideration; and

(iv) afford reasonable protection without imposing any

unreasonable burdens. See Daniels v. Thomas, Dean & Hoskins,

P.C., 804 P.2d 359, 370 (Mont. 1990); Dobbins, DeGuire & Tucker,

P.C. v. Rutherford, 708 P.2d 577 (Mont. 1985). 

Additionally, nothing indicates that the district court

abused its discretion during discovery. Thus, the district

court’s decisions should be affirmed, as they are neither

arbitrary nor clearly unreasonable. See Moore v. Willis Indep.

School Dist., 233 F.3d 871, 876 (5th Cir. 2000); Kelly v. Syria

Shell Petroleum Development, 213 F.3d 841, 855 (5th Cir. 2000).

Finally, plaintiff also asserts a number of other claims,

such as (i) that evidence was improperly excluded, (ii) that

defendant failed to provide required documents, and (iii) that
No. 01-21201

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the district court made improper determinations of credibility. 

None of these arguments bears any merit.

Accordingly, the district court’s holding is AFFIRMED.