John Rexses v. The Goodyear Tire & Rubber Co.

Filing

UNPUBLISHED OPINION FILED. [10-40120 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 12/01/2010 [10-40120]

John Rexses v. The Case: 10-40120 Document: 00511289900 Goodyear Tire & Rubber Co.

Page: 1 Date Filed: 11/10/2010

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 10, 2010 N o . 10-40120 S u m m a r y Calendar Lyle W. Cayce Clerk

J O H N REXSES, Plaintiff - Appellant v. T H E GOODYEAR TIRE & RUBBER COMPANY, Defendant - Appellee

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:08-cv-272

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* F o llow in g his termination, Plaintiff-Appellant John Rexses ("Rexses") sued D e fe n d a n t -A p p e lle e Goodyear Tire & Rubber Company ("Goodyear") under the T e x a s Commission on Human Rights Act for age discrimination. The magistrate ju d g e granted summary judgment to Goodyear; Rexses appeals. Because Rexses

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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h a s failed to establish a prima facie case of age discrimination, and because he c a n n o t otherwise establish that he was discharged due to his age, we AFFIRM. I . BACKGROUND R e x s e s was terminated from his job at Goodyear in 2007, when he was 5 3 years old. The record reflects that Rexses was warned and/or reprimanded o v e r a number of disciplinary problems that arose in late 2005 after he was p a s s e d over for a promotion. Following a lengthy short-notice vacation, Rexses t o ld his supervisor, Bob Hebert ("Hebert"), that he intended to pursue other e m p lo y m e n t opportunities outside his work division. Following that

a n n o u n c e m e n t , Hebert initiated a succession planning meeting with Rexses. Around that time, Rexses started emailing various individuals outside his work g r o u p in violation of Goodyear's established chain of command. Following each in c i d e n t , Hebert reprimanded Rexses. On several occasions, Hebert offered R e x s e s a transfer, which Rexses declined each time. Rexses has acknowledged a n d apologized for his misconduct. H o w e v e r , the disciplinary problems continued. On February 2, 2007, R e x s e s sent another inappropriate email to contacts outside his division. As a r e s u lt , on February 13, Hebert informed Rexses that Rexses would be t r a n s fe r r e d to the Six Sigma division. Rexses immediately took vacation leave a n d sent one last inappropriate email to a third party vendor. A 58-year-old vice p r e s id e n t at Goodyear finally emailed Rexses his termination: "John, I have had e n o u g h of your B.S. I assume that you have another job! If not ­ you had better c o n s id e r finding one since you no longer have one in the Chemical Operations." Following Rexses's termination, his division did not hire a replacement, b u t instead eliminated Rexses's position and divided up his old responsibilities a m o n g the existing staff. Many, but not all, of his former duties went to a cow o r k e r , Linda Joseph, who was age 48 at the time of Rexses's termination.

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I I . STANDARD OF REVIEW " T h e court reviews the district court's grant of summary judgment de novo, a p p ly in g the same standards as the district court. Summary judgment is

w a r r a n te d if `the pleadings, the discovery and disclosure materials on file, and a n y affidavits show that there is no genuine issue as to any material fact and t h a t the movant is entitled to judgment as a matter of law.'" Depree v. Saunders, 5 8 8 F.3d 282, 286 (5th Cir. 2009) (internal citations omitted). III. DISCUSSION R e x s e s filed suit under the Texas statute prohibiting age discrimination ­ the Texas Commission on Human Rights Act ("TCHRA") ­ which states, in p e r t in e n t part: An employer commits an unlawful employment practice if because o f . . . age the employer: (1) . . . discharges an individual, or d is c r im in a t e s in any other manner against an individual in c o n n e c t io n with compensation or the terms, conditions, or privileges o f employment . . . . T e x . Lab. Code Ann. § 21.051(1). Texas state courts interpret that provision in lin e with analogous federal law. See Wal-Mart Stores, Inc. v. Canchola,

1 2 1 S.W.3d 735, 739 (Tex. 2003) ("The Legislature intended to correlate state la w with federal law in employment discrimination cases when it enacted the T C H R A ." ). To prevail on his claim, Rexses first must establish a prima facie c a s e of age discrimination by showing that he (1) is a member of a protected c la s s , (2) was qualified for his position, (3) was subject to an adverse employment a c t io n , and (4) was "either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of . . . age." See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309, 312 (5th Cir. 2004). The t h ir d alternative of the last element applies in circumstances where the plaintiff is not replaced. See Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).

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B o t h parties agree that Rexses has satisfied the first three components of his p r im a facie case. A. R e x s e s Was Not "Replaced" T h e court correctly noted that a terminated employee has not been " r e p la c e d " when his position is eliminated and his former duties are distributed a m o n g other co-workers. See, e.g., Dulin v. Dover Elevator Co., 139 F.3d 898 (5th C ir . 1998) (affirming district court's holding that "when an employee's position h a s been eliminated and the job duties reassigned to existing employees, that e m p lo y e e has not been replaced"). That is what happened here. Rexses

a c k n o w le d g e s that some of his duties were assigned to Linda Joseph, and others w e r e assigned to Hebert. See R. at 358 (Pl.'s Resp. to Def.'s Motion for Sum. J u d .) . Moreover, the record shows that there were a number of material

d iffe r e n c e s between Joseph's duties and those of Rexses. See R. at 256-57 (Decl. o f Bob Hebert). The district court correctly concluded that as a matter of law, R e x s e s was not "replaced." B e c a u s e we agree that Rexses was not "replaced," we do not consider whether the five-year age gap between Joseph and Rexses made Joseph " s u b s t a n t ia lly younger" as a matter of law. B. R e x s e s Was Not Otherwise Discharged Because of Age R e x s e s cites several examples of what he perceives to be age d is c r im in a t io n . First, he states that he was encouraged to engage in succession p la n n in g . The record indicates that Goodyear officers discussed succession p la n n in g with Rexses only after he had threatened to resign. An employer's in q u ir y into an employee's age and retirement plans is not by itself evidence of d is c r im in a t o r y intent. See Moore v. Eli Lilly & Co., 990 F.2d 812, 818 (5th Cir. 1 9 9 3 ).

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R e x s e s next argues that he was subjected to trivial reprimands designed t o create a pretext under which his employer could fire him. The district court r e je c t e d this conclusion because Rexses himself had acknowledged and a p o lo g iz e d for his wrongdoing that led to the reprimands. Finally, Rexses argues that his employer engaged in a pattern of discriminatory conduct. The d is t r ic t court properly rejected this claim because Rexses presented no evidence a p a r t from his own subjective beliefs. G o o d y e a r met its burden of articulating a legitimate and neutral business r e a s o n for terminating Rexses. Rexses was terminated for being insubordinate, fo r flouting the company's chain of command, and for sending inappropriate e m a ils to third parties. But there is no evidence that Rexses was fired by a m a n a g e r five years his senior due to age animus. I V . CONCLUSION R e x s e s has failed to demonstrate a prima facie claim for age d is c r im in a t io n . Goodyear was entitled to summary judgment. The judgment of t h e trial court is AFFIRMED.

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