* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-20309

No. 95-20572

(Summary Calendar)

_______________

MAX G DURAN,

Plaintiff-Appellant,

versus

SCHLUMBERGER TECHNOLOGY CORPORATION,

Defendant-Appellee.

_______________________________________________

Appeal from the United States District Court

For the Southern District of Texas

(H:94-CV-1085)

_______________________________________________

February 23, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Max G. Duran appeals the district court's final

judgment granting Defendant Schlumberger Technology Corporation's

motion for summary judgment. We affirm.

I

Duran, a Hispanic, attained the position of Senior Machinist

as an employee of Schlumberger Technology Corporation

("Schlumberger"). Pursuant to a reclassification of its
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machinists, Schlumberger designated Duran as a Machinist II.

Shortly thereafter, Schlumberger laid off Duran and eight other

employees classified as Machinists II as part of an economic

reduction in force. Duran filed suit against Schlumberger,

alleging unlawful discrimination, in violation of the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and in

violation of Title VII of the Civil Rights Act of 1964, as amended

by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.

Schlumberger filed a motion for summary judgment, which the

district court granted. Duran then filed a motion to vacate

judgment, which was denied. Duran filed a timely notice of appeal.

II

A

Duran first argues that the district court erred when it

granted Schlumberger's motion for summary judgment. We review a

district court's grant of summary judgment de novo. Armstrong v.

City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993). Summary judgment

is appropriate in cases in which there is no genuine issue as to

any material fact and the movant is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c). In reviewing a motion for

summary judgment, we view the evidence in the light most favorable

to the non-movant, drawing all justifiable inferences in his favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct.

2505, 2513, 91 L. Ed. 2d 202 (1986). In an employment

discrimination case, we focus on whether a genuine issue exists as

to whether the defendant intentionally discriminated against the
 

1 A plaintiff asserting a claim for age discrimination may also satisfy

this fourth element by proving that he was replaced with someone younger or

otherwise discharged because of his age. Bodenheimer, 5 F.3d at 957.

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plaintiff. Armstrong, 997 F.2d at 65-66.

The Age Discrimination in Employment Act makes it unlawful "to

discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age." 29

U.S.C. § 623(a)(1). Title VII makes it unlawful "to discharge any

individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's race, color, religion,

sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). We review

cases under the ADEA according to the same procedural requirements

applicable to Title VII cases. Bodenheimer v. PPG Indus., Inc., 5

F.3d 955, 957 n.4 (5th Cir. 1993). A discharged employee

establishes a prima facie case of employment discrimination by

demonstrating that (1) he was qualified for the position, (2) he

was discharged, (3) he was within the protected class, and (4) he

was replaced with someone outside the protected class.1 McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824-25,

36 L. Ed. 2d 668 (1973). The plaintiff's prima facie case creates

a presumption that the employer unlawfully discriminated against

the employee, requiring the employer to come forward with a

legitimate, nondiscriminatory reason for the discharge. Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.

Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). If the employer
 

2 This reduction in force was the second in a series of layoffs which

culminated with the closing of the machine shop and the layoff of all remaining

machine shop employees. 

 

3 Schlumberger's layoff policy provides that employees will be laid off

in the order of least seniority within job groups. Duran was one of nine

employees, classified as Machinists II, laid off by Schlumberger in the order of

least seniority.

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introduces evidence which, if true, would permit the conclusion

that the discharge was nondiscriminatory, the presumption created

by the plaintiff's prima facie case drops out of the case, leaving

the ultimate issue of whether the employer intentionally

discriminated against the plaintiff. St. Mary's Honor Ctr. v.

Hicks, ___ U.S. ___, ___, 113 S. Ct. 2742, 2748-49, 125 L. Ed. 2d

407 (1993).

Duran does not challenge Schlumberger's representation that

the reduction in force in which Duran was laid off was economically

motivated.2 Nor does Duran argue that he was laid off in a manner

inconsistent with company policy.3 Rather, Duran asserts that

Schlumberger utilized the reclassification of its employees as a

pretext for unlawful discrimination. In support of this assertion,

Duran argues (1) that he would not have been laid off had he been

classified as a Machinist III, (2) that he was classified as a

Machinist II even though he was qualified to be a Machinist III,

and (3) that younger, white employees were given favorable

treatment, such as being classified as Machinists III even though

they were only qualified to be Machinists II.

We assume for the purposes of this appeal that Duran has

satisfied the elements of a prima facie case, creating a
 

4 For its definition of "proficiency," Schlumberger points to the

minimum requirements for the Machinist III position, as stated in company

documents. According to these documents, Machinists III "[m]ust be able to set

up and operate a conventional lathe and mill with a high degree of efficiency and

quality, without assistance . . . [and m]ust be able to set up and operate 

CNC [computer numerical control] machines without detailed instructions."

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presumption that Schlumberger reclassified its employees for the

purpose of dismissing them on the basis of race and age.

Schlumberger, however, has come forward with a legitimate,

nondiscriminatory reason for its reclassification system. With a

shrinking workforce, Schlumberger asserts, it became necessary to

distinguish between employees proficient in the operation of all

three machine groups in the machine shop and employees proficient

in the operation of at least one, but not all, of the three machine

groups in the machine shop.4 Duran then had the opportunity to

come forward with evidence to create a genuine issue of fact as to

whether Schlumberger's nondiscriminatory reason was merely a

pretext for unlawful discrimination.

Duran asserts that he was classified as a Machinist II even

though he was qualified to be classified as a Machinist III.

However, Duran's supervisor's deposition, Duran's personnel file,

and Duran's own deposition confirm that he was not "proficient" in

the operation two of the three machine groups in the machine shop.

Duran further asserts that younger, white employees were classified

as Machinists III even though they were not qualified to be

classified as Machinists III. However, Duran presents no competent

evidence to dispute the deposition testimony of Duran's supervisor,

who testified that each of the employees classified as Machinists
 

5 Duran offers his own affidavit stating that he was more qualified

than several named employees classified as Machinists III. However, mere

conclusory allegations will not establish competent summary judgment evidence.

Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825,

113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). Further, Duran offers his own affidavit

stating that several named employees classified as Machinists III did not operate

the "4-axis mill," one type of computer numerical control machine. However, the

fact that these employees may not have operated one type of the computer

numerical control machines in the machine shop does not contradict Duran's

supervisor's testimony that these employees were able to set up and operate

computer numerical control machines without detailed instructions, in accordance

with Schlumberger's requirements for the Machinist III position. 

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III had completed the training necessary to demonstrate proficiency

on all three of the machine groups in the machine shop.5 Duran

also alleges that Schlumberger gave preferential treatment to a

younger, white employee by allowing him to transfer into the

machine shop after Duran was laid off. However, Duran presents no

evidence to dispute Schlumberger's representation that this

employee was qualified as a Machinist III, and therefore was not

within Duran's job group.

Thus, Duran has presented no evidence sufficient to create a

genuine issue of material fact with regard to the ultimate issue of

whether Schlumberger intentionally discriminated against Duran on

the basis of his age or race. Accordingly, the district court did

not err in granting Schlumberger's motion for summary judgment.

B

Duran next argues that the district court erred when it denied

Duran's motion to vacate judgment, filed in accordance with FED. R.

CIV. P. 60(b). We review a district court's ruling on a Rule 60(b)

motion for abuse of discretion. First Nationwide Bank v. Summer

House Joint Venture, 902 F.2d 1197, 1200-01 (5th Cir. 1990).

Duran based his Rule 60(b) motion on several newly discovered
 

6 Duran presents no competent evidence that he sought additional

training, no evidence that he pursued a reclassification test, and no evidence

that the employees named in the electronic mail messages were not qualified to

be classified as Machinists III. 

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electronic mail messages relating to the reclassification of

several employees from Machinist II to Machinist III shortly before

Duran was laid off. To prevail on a Rule 60(b) motion based on

newly discovered evidence, the movant must show that the evidence

is material and controlling and that the evidence clearly would

have produced a different result if presented before the original

judgment. New Hampshire Ins. Co. v. Martech USA, Inc., 993 F.2d

1195, 1200-01 (5th Cir. 1993). The electronic mail messages

reflect that one employee was erroneously classified as Machinist

II due to a clerical error, that one employee successfully passed

a reclassification test, and that two employees had successfully

completed training that qualified them to be classified as

Machinists III.

6 On this record, we hold that the district court

did not abuse its discretion in finding that the new evidence would

not have clearly produced a different result if presented before

the district court's original judgment. Accordingly, the district

court did not err when it denied Duran's Rule 60(b) motion to

vacate judgment.

III

For the foregoing reasons, the district court's final

judgment, granting Schlumberger's motion for summary judgment, is

AFFIRMED.