* Pursua nt to 5 T H 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this opinion should not be published and is not precedent except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

July 28, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-20572

EDWARD FANNING,

Plaintiff-Appellant,

versus

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(4:02-CV-4544)

Before KING, Chi ef Judge, and BARKSDALE and STEWART, Circuit

Judges.

PER CURIAM: *

Edward Fanning challenges the summary judgment awarded

Metropolitan Transit Authority (Metro) against his age

discrimination and retaliation claims under the Age Discrimination

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

I.

Metro employe d Fanning as a manager of architecture in its

planning, engineering, and construction department. Fanning’s

direct supervisor was Gary Lemley (age 51); John Mickelson (age 50)2

was the department head. On 9 November 2001, they met with Fanning

to discuss their dissatisfaction with his work, including his

recent inab ility to meet deadlines and his insubordinate

communications with Metro executives. They told Fanning they

wanted to terminate his employment immediately, but off ered him

three options: resign; be fired; or take advantage of Metro’s early

retirement policy upon his upcoming 55th birthday in March 2002.

Fanning responded that they had violated federal law by suggesting

he take early retirement.

Several days later, Fanning complained to Metro’s human

resources department (HR) about the 9 November meeting. HR later

placed Fanning on a 60-day corrective action program (CAP).

In February 2002, after he had been placed on the CAP, Fanning

filed an age discrimination complaint with the EEOC, claiming the

9 November option and Lemley and Mickelson’s subsequent inquiries

about his retirement, co nstituted age discrimination. The EEOC

determined there was no basis for Fanning’s claim and issued a

right-to-sue letter in August 2002. Fanning’s employment was

terminated after he received that letter.

Fanning brought this ADEA action against Metro, claiming age

discrimination and retaliation. After limited discovery, Metro

moved for summary judgment, contending Fanning could not present a

prima facie case for either cl aim. Pursuant to the standard for

such judg ment, the district court held: Fanning could not3

establish a prima faci e c ase for either claim; and, even if he

could, he could not show that Metro’s legitimate reasons for firing

him were pretext for an underlying discriminatory motive.

Pursuant to Federal Rule of Civil P rocedure 59(e), Fanning

moved for reconsideration. He contended the court erred when it:

(1) granted summary judgment prior to the deadline for production

of compelled discovery; and (2) granted such judgment.

The district court denied the motion, holding: it was

untimely; and, in the alternative, the timing of the summary

judgment was not prejudi cial to Fanning because the evidence he

sought did not support his prima facie case.

II.

Fanning appeals from the summary ju dgment and denial of his

motion to reconsider. We address each in turn.

A.

A summary judgment is reviewed de novo

. E .g., GDF Realty

In v., Ltd. v. Norton , 326 F.3d 622, 627 (5th Cir. 2003), c ert.

denied

, 125 S. Ct. 2898 (2005). Such judgment is proper when

“there is no genuine issue as to any ma terial fact and ... the

[movant] is entitled to a judgment as a matter of law”. F E D

. R

.

C IV

. P. 56(c); e.g.

, Celotex Corp. v. Catrett

, 477 U.S. 317 (1986).

All inferences must be drawn in favor of the nonmovant, Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp.

, 475 U.S. 574, 587-88

(1986); but, “there is no issue for trial unless there is4

sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party. If the evidence is merely

colorable, or is not significantly probative, summary judgment may

be granted”, A nderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 249-50

(1986) (internal citations omitted).

To establish a prima facie case of ADEA age discrimination, a

plaintiff must show: “1) he was discharged; 2) he was qualified for

his position; 3) he was within the protected class [over age 40];

and 4) he was replaced by someone outside the protected class,

someone younger, or was otherwise discharged because of his age”.

West v. Nabors Drilling USA, Inc.

, 330 F.3 d 379, 384 (5th Cir.

2003) (quotation marks omitted). To establish a prima facie case

of ADEA retaliation, a plaintiff must show: he was qualified for

his position; and “(1)

... he engaged in a protected activity, (2)

... there was an adverse employment act ion, and (3) ... a causal

link existed be tween the protected activity and the adverse

employment action”. H oltzclaw v. D SC Communications Corp. , 255

F.3d 254, 259 (5th Cir. 2001) (citation omitted).

The burden-shifting analysis presented in McDonnell Douglas

Corp. v. Green

, 411 U.S. 792 (1973), applies to ADEA discrimination

and re taliation claims when, as here, they are based on

circumstantial evidence. Patrick v. Ridge

, 394 F.3d 311, 315 (5th

Cir. 2004) (ADEA retaliation); West

, 330 F.3d at 384 (ADEA age

discrimination). If the employee makes a p rima facie showing, the5

employer “must produce evidence of a legitimate, nondiscriminatory

reason for its decision to terminate [plaintiff’s] e mployment”.

West

, 330 F.3d at 384

. I f the employer meets this requirement, the

court must “decide whether [plaintiff] has proved intentional

discrimination. To meet his burden of proof, [plaintiff] can rely

on evidence that [the emp loyer’s] reason for terminating him was

pretextual”. Id. at 385 (internal citation omitted).

The district court held Fanning could not show a prima facie

case for either claimbecause he did not present any direct or

circumstantial evidence that he was fired for anything but personal

or professional reasons. The court further determined that, even

if Fanning could do so, he presented no evidence of discriminatory

motive or retaliatory animus by Metro.

Fanning contends the district court erred in concluding: (1)

he could not establish a prima facie case for either claim; (2) in

response to Fanning’s claims, M etro presented legitimate, nond iscriminatory reasons for firing him; and (3) Fanning failed to

present evidence that Metro’s reasons for firing him were pretext.

Fanning also maintain s the district court refused incorrectly to

apply the mixed-motive standard to his claims. Metro responds that

Fanning did not meet his summary judgment burden of presenting a

prim a facie case for either claim because he could not show any

evidence of discriminatory animus on Metro’s part. In the

alternative, Metro maintains the claims still fail as a matter of6

law becau se Fanning could not produce any evidence that Metro’s

proffered motives for firing him were anything but professional.

Essentially for the reasons stated by the district co urt,

Fanning’s p rima facie case for age discrimination fails because,

inter alia

, Lemley and Mickelson’s offer at the 9 November 2001

meeting to allow him to resign when he reached early retirement

age, instead of being fired earlier, is not evidence that Fanning

was terminated because of his age. S ee Fagan v. New York State

Elec. & Gas Corp. , 186 F.3d 127, 133 (2d Cir. 1999).

Fanning’s prima facie case for retaliation fails because he

cannot establish a causal connection between his termination,

planned since November 2001, and the ADEA-protected activities of

complaining to HR or filing a claim with the EEOC. “Employers need

not suspend previously planned [employment actions] upon

discovering that a [claim with the EEOC] has been filed, and their

proceeding along lines previous ly contemplated, though not yet

definitively determined, is no evidenc e whatever of causality”.

Clark County Sch. Dist. v. Breeden , 532 U.S. 268, 272 (2001).

Because summary judgment was proper based on Fanning’s failure

to establish a prim a facie case for age discrimination or

retaliation, we need not reach Fanning’s conten tion that the

district court applied the incorrect standard in examining whether

he could prove pretext.7 B.

The denial of a Rule 59(e) motion is reviewed for abuse of

discretion. E.g.

, Fletcher v. Apfel , 210 F.3d 510, 512 (5th Cir.

2000). In claiming abuse of discretion, Fanning asserts: (1) his

motion was timely; and (2) summary judgment should not have been

awarded before the deadline for a recently-granted motion to compel

evidence, and, had the court waited until after that deadline, he

could have presented evidence of pretext. Metro replies: Fanning

waived any discovery issue when he did not move for a continuance

under Rule 56(f) (party opposing su mmary judgment may seek

continuance for further discovery if, for reasons stated, it cannot

present facts adequat e to justify opposition); and any error was

harmless because, as Fanning acknowledged, the requested evidence

concerned pretext and did not support his prima facie case for

either claim.

Fanning’s motion was timely. Pursuant to Rules 59(e) and

6(a), he filed it within the requisite ten days after the entry of

the summary judgment order

– not counting intervening Saturdays and

Sundays.

In any event, the district court did not abuse its discretion

in ruling, in the alternative, against the motion. “This court has

long recognized that a plaintiff’s entitlement to discovery prior

to a ruling on a motion for summary judgment is not unlimited, and

may be cut off when the record shows that the requested discovery8

is not likely to produce the facts needed by the plaintiff to

withstand a motion for summary judgment.” Washington v. Allstate

Ins. Co. , 901 F.2d 1281, 1285 (5th Cir. 1990) (citation omitted).

Further, our court has foreclosed a party’s contention on appeal

that it had inadequate time to marshal evidence to defend against

summary judgment when the party did not seek Rule 56(f) relief

before the summary judgment ruling. Potter v. Delta Airlines , 98

F.3d 881, 887 (5th Cir. 1996). A Rule 56(f) motion, not one for

reconsideration, is the proper remedy for a party claiming summary

judgment is inappropriate because of inadequate discovery. E.g.

,

Access Telecom, Inc. v. MCI Telecommunications Corp.

, 197 F.3d 694,

719-20 (5th Cir. 1999), cert. denied

, 531 U.S. 9 17 (2000);

Washington , 901 F.2d at 1285.

III.

For the foregoing reasons, the judgment is

AFFIRMED.