Ordona v. Memorial Hermann Health System

Filing 46

ORDER ON MOTION FOR RECONSIDERATION granting 26 Defendant's MOTION for Reconsideration and vacating in part 21 Order on Defendant's Motion for Summary Judgment. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
vs.
§
§
MEMORIAL HERMANN HEALTH SYSTEM §
d/b/a TIRR MEMORIAL HERMANN d/b/a
§
MEMORIAL HERMANN TIRR,
§
§
Defendant.
§
§

February 01, 2017
David J. Bradley, Clerk

RONNIE ORDONA,

CIVIL ACTION NO. 4:15-cv-0166

ORDER ON MOTION FOR RECONSIDERATION
I.

INTRODUCTION
The plaintiff, Ronnie Ordona (the “plaintiff”), a fifty-four year old, Asian Filipino male,

filed the instant civil action against the defendant, Memorial Hermann Health System d/b/a Tirr
Memorial Hermann d/b/a Memorial Hermann Tirr1 (the “defendant”), alleging claims for race,
national origin and sex discrimination in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and age discrimination in violation of the
Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). The
defendant has moved for a summary judgment on all of the plaintiff’s claims. On May 2, 2016,
this Court entered an Order granting the defendant’s motion for summary judgment as to the
plaintiff’s claims for race, national origin and sex discrimination in violation of Title VII and
denying the defendant’s motion for summary judgment as to the plaintiff’s age discrimination

1

TIRR is a rehabilitation and research health facility acquired by the Memorial Hermann Health System. After its
acquisition, the facility became known as TIRR Memorial Hermann. After Memorial Hermann acquired TIRR, it
retained the plaintiff as an employee. (See Dkt. No. 17, Ex. B at ¶ 3.).

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claims under the ADEA.2 (See Dkt. No. 21). Thereafter, the defendant filed a motion for
reconsideration of this Court’s Order denying its motion for summary judgment on the plaintiff’s
age discrimination claim. (Dkt No. 26). The plaintiff has filed a response in opposition to the
defendant’s motion for reconsideration (Dkt. No. 31) and the defendant has filed a reply. (Dkt.
No. 32). After having carefully considered the motion, response, reply, the record and the
applicable law, the Court determines that the defendant’s motion for reconsideration is
GRANTED; this Court’s previous Order denying the defendant’s motion for summary judgment
on the plaintiff’s age discrimination claim is VACATED in part.
II.

FACTUAL BACKGROUND
In November 1999, the plaintiff began employment with the defendant as a respiratory

therapist or respiratory care practitioner. (See Dkt. No. 17, Ex. A at 32:14 – 33:1.). The
defendant’s facility is regarded as a rehabilitation and research health facility that provides
comprehensive medical rehabilitation for individuals who have experienced traumatic brain
injuries, stroke, spinal cord injuries, amputations, multiple traumas, multiple sclerosis,
Parkinson’s disease, and other neurological or neuromuscular disorders. (Id., Ex. B at ¶ 4.). As
a respiratory therapist, the plaintiff’s job duties included, inter alia: performing respiratory care
procedures such as ventilator management, EKGs, blood gases procedures and general floor

2

Subsequent to this Court’s entry of its Order, the defendant filed a motion seeking to strike a portion of the
plaintiff’s affidavit containing a statement regarding his conversations with fellow respiratory therapists.
Specifically, the plaintiff stated as follows:
8.

Based on discussions with my fellow respiratory therapist, it is also my understanding
that not charting or documenting the tracheotomy size for existing patients was common
practice for all respiratory therapists employed by [d]efendant.

(Dkt. No. 20, Ex. A at ¶ 8.). The Court determines that the defendant’s motion to strike in this regard has merit and
should be granted as the statement is not based on personal knowledge, lacks foundation and contains inadmissible
hearsay and thus, should be excluded. See Khan v. Cougar Stop, Inc., Civ. Act. No. H-06-2862, 2007 WL 2777774,
at *2 (S.D. Tex. Sept. 21, 2007) (finding that statement contained in declaration referencing “discussions with my
co-workers who are employees of Defendants” “as being not based on personal knowledge, lacking in foundation
and conclusory”).

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therapy; performing respiratory care quality assurance problem solving; completing patient
assessments; ensuring reliable care to patients; and adhering to the defendant’s policies,
procedures and standards. (Id., Ex. A at 38:20 – 39:4; see also Depo. Ex. 7.). At the outset of
his employment, the plaintiff was provided with instructions for accessing the Memorial
Hermann Healthcare System Human Resources Employee Policies on “ask HR,” which sets
forth the terms and conditions of employment for the defendant’s various employees. (Id., Ex. A
at 47:11 - 15; see also Depo. Ex. 2.). The plaintiff also received a hard copy of the Memorial
Hermann Standards of Conduct, acknowledging that he understood that it remained his
responsibility to read and abide by all of the defendant’s current and future policies and
procedures. (Id., Ex. A at 49:6 - 12; see also Depo. Ex. 2.). The plaintiff further acknowledged
having received a copy of Memorial Hermann’s Corporate Policy and Procedure EEO policy as
well as its Ground Rules for Professional Etiquette, which directed the plaintiff to make patient
care and customer satisfaction one of his top priorities while performing his job duties for the
defendant. (Id., Ex. A at 49:13 – 52:11; see also Depo. Ex. 4.).
During the course of his employment with the defendant, the plaintiff endured several
supervisors, the most recent being Respiratory Manager Darby Cruz (“Cruz”). (Id., Ex. A at
36:9 – 38:6). Cruz was hired in July of 2009 to replace the plaintiff’s prior manager, Desiree
Lacey. (Id., Ex. B at ¶ 6.). Cruz remained the plaintiff’s supervisor until his termination on July
3, 2013. (Id., Ex. A at 38:2 – 6: 62:1 – 9; see also Dkt. No. 17, Ex. B at ¶ 6.).
In March of 2007, the plaintiff’s position with the defendant became classified as a lead
therapist position. (Id., Ex. A at 53:18 – 25; see also Depo. Ex. 5.). As a lead therapist, the
plaintiff was responsible for coordinating work assignments, ensuring that designated
assignments were completed, attending staff meetings and reporting any shift problems and

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issues to the oncoming lead therapist.

(Id.)

Eventually, the lead therapist position was

supplemented and reclassified as a level III respiratory care practitioner position. (Dkt. No. 17,
Ex. B at ¶ 9.).
Level III respiratory care practitioners were required to retain specific certifications,
complete their duties in such a way so as to promote quality patient care and customer
satisfaction, document medical records appropriately, and perform other authentication duties
accurately and efficiently in accordance with the defendant’s policies and procedures. (Id., Ex.
A at 56:3 – 19; see also Depo. Ex. 6.). On July 31, 2011, the plaintiff was demoted to a Level II
respiratory care practitioner due to his failure to meet the certification requirements needed to
maintain such status. (Dkt. No. 17, Ex. B at ¶ 10; Ex. A at 57:21 – 58:19.). As a result, he could
no longer recommend basic and advanced therapeutic and diagnostic procedures, mentor, train or
support other respiratory care practitioners or conduct rounds to assess the appropriateness
and/or effectiveness of patient therapy. (Id., Ex. A at Depo. Ex. Nos. 6 & 7.). The plaintiff
never obtained recertification as a level III respiratory care practitioner and remained a level II
respiratory care practitioner for the duration of his employment with the defendant. (See Dkt.
No. 17, Ex. B at ¶ 10, Ex. A)
The record before the Court is replete with written disciplinary warnings provided to the
plaintiff by his various supervisors for his failure to accurately document his patient’s care and/or
results obtained during his observations. (See Dkt. No. 17, Ex. A). After conducting routine
audits of patient files, Cruz discovered that various respiratory care practitioners were not
documenting the size and type of tracheotomy tubes during their daily assessments. (Id., Ex. B
at G). Memorial Hermann Policy RST-00017, revised in July of 2009 with Cruz’s assistance,
addresses the scope of respiratory patient assessments as well as the requirement that such

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reassessments be performed on an ongoing basis. (Id., Ex. B at G). Cruz maintains that she not
only sent an e-mail in April of 2013 reminding the respiratory care practitioners of this
requirement, but also held a staff meeting in April of 2013, to re-emphasize the importance of
daily documenting and to address the problems associated with the respiratory care practitioners’
repeated failure to adhere to such documentation requirements. (See Dkt. No. 17, Ex. H).
In addition to emphasizing the importance of daily documenting, Cruz asserts that she
explicitly instructed the respiratory care practitioners to document tracheotomy tube sizes and
types with every tracheotomy care. (Id., Ex. B). The meeting agenda notes reflect Cruz’s
instructions and the related attendance sign-in sheet confirms that the plaintiff attended the
meeting and received such instructions. (Id., Ex. B at H & I). During his deposition, the plaintiff
acknowledged that he attended the meeting, signed the attendance sheet, but recounts that he
may have arrived late to the meeting. (Id., Ex. A at 90:4 - 15).
On April 30, 2013, the plaintiff received a final written warning for not documenting in
accordance with Memorial Hermann Policy RST-00017, as he had not documented the
tracheotomy tube sizes and types for various patients on multiple days, including April 22, 23, 26
and 30, 2013. (See Dkt. No. 17, Ex. A at 96:19 – 23; Ex. 13.). In spite of his meeting with Cruz
and receiving a final written warning, the plaintiff continued to omit documenting the
tracheotomy tube sizes and types before each treatment. The plaintiff admittedly testified that
even after receiving the written warning from Cruz, he did not document the tracheotomy size
before each treatment because he still perceived the documenting requirement to be optional
rather than mandatory. (Id., Ex. A at 97:15 – 98:7; 108:2 - 9). On July 3, 2013, Cruz presented
the plaintiff with a discharge Corrective Action Form during a meeting with him wherein she
explained that he was being terminated for his numerous performance errors—namely, his

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insubordination and continued failure to document the tracheotomy tube sizes and types before
every treatment in accordance with Memorial Hermann Policy RST-00017. (Id., Ex. A at 108:16
– 19; 113:7 - 10).
On January 13, 2014, the plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging claims of race, national origin, sex
and age discrimination. On October 24, 2014, the EEOC issued a notice of right to sue letter to
the plaintiff. On January 20, 2015, the plaintiff commenced the instant action against the
defendant alleging claims for race, national origin and sex discrimination in violation of Title VII
and age discrimination in violation of the ADEA.
III.

ANALYSIS AND DISCUSSION
The ADEA provides that “[i]t shall be unlawful for an employer . . . 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). “The ADEA makes it unlawful for an employee, who is at least 40 years old, to be
discharged because of his age.” Rutland v. Moore, 54 F.3d 226, 228 (5th Cir. 1995) (citing 29
U.S.C. §§ 623(a)(1), 631(a)). In employment discrimination cases, such as the one sub judice,
discrimination under the ADEA may be proven “by direct or circumstantial evidence, or both.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002); see also Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). The Fifth Circuit has held that in
cases where, as here, no direct evidence3 of discriminatory intent has been produced, proof by
means of circumstantial evidence must be evaluated using the burden-shifting framework

3

“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or
presumption.” See Sandstad, 309 F.3d at 897 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217 (5th Cir.
1995)).

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established in McDonnell Douglas Corp. v. Green and modified by the Fifth Circuit. See
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 - 52 (5th Cir. 2005) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973)); see also Rachid
v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); Russell, 235 F.3d at 222.
Under the modified McDonnell Douglas framework, the Fifth Circuit has stated the test
as follows:
[The plaintiff] must [first] . . . demonstrate a prima facie case of discrimination;
the defendant then must articulate a legitimate, non-discriminatory reason for its
decision to terminate the plaintiff; and, if the defendant meets its burden of
production, the plaintiff must then offer sufficient evidence to create a genuine
issue of material fact either (1) that the defendant’s reason is not true, but is
instead a pretext for discrimination (pretext alternative); or (2) that the
defendant’s reason, while true, is only one of the reasons for its conduct, and
another motivating factor is the plaintiff’s protected characteristic (mixed-motive
alternative). If a plaintiff demonstrates that age was a motivating factor in the
employment decision, it then falls to the defendant to prove that the same adverse
employment decision would have been made regardless of discriminatory animus.
If the employer fails to carry this burden, plaintiff prevails.
Machinchick, 398 F.3d at 352 (quoting Rachid, 376 F.3d at 312) (citations, internal quotation
marks and alterations omitted). “Although intermediate evidentiary burdens shift back and forth
under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed.2d
105 (2000) (quoting Burdine, 450 U.S. at 253, 101 S. Ct. 1089)). Thus, “[t]o avoid summary
judgment, an age discrimination plaintiff must present evidence that both (1) rebuts the
employer’s non-discriminatory reason, and (2) creates an inference that age was a determinative
factor in the challenged employment decision.” Ross v. Univ. of Texas at San Antonio, 139 F.3d
521, 525 (5th Cir. 1998) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.
1996)).

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More recently, however, the United States Supreme Court questioned the applicability of
the McDonnell Douglas test to cases brought pursuant to the ADEA. Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 129 S. Ct. 2343, 2352 n.2, 174 L. Ed.2d 119 (June 18, 2009). Specifically, in
Gross, the Supreme Court rejected the application of Title VII’s “motivating factor” standard to
ADEA mixed-motive cases and expressly held that, in such cases, the plaintiff must “prove by a
preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’
cause of the challenged employer decision.” Id. at 2351 (citing Reeves, 530 U.S. at 141 - 43,
147, 120 S. Ct. 2097). In support of its position, the Supreme Court reasoned that “[u]nlike Title
VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing
that age was simply a motivating factor.” Gross, 129 S. Ct. at 2349. To this end, the Court
concluded that “[t]he burden of persuasion does not shift to the employer to show that it would
have taken the action regardless of age, even when a plaintiff has produced some evidence that
age was one motivating factor in that decision.” Id. at 2352.
The Gross Court did not address the effect of its holding on the use of the McDonnell
Douglas burden-shifting framework in ADEA cases, but merely stated that it “has not definitely
decided whether the evidentiary framework of McDonnell Douglas . . . utilized in Title VII
cases is appropriate in the ADEA context.” Gross, 129 S. Ct. at 2349 n.2. The Fifth Circuit and
district courts within this circuit, however, have continued to apply the McDonnell Douglas
framework to ADEA claims premised on circumstantial evidence at the summary judgment
stage. See Cervantez v. KMGP Servs. Co. Inc., No. 08-11196, 2009 WL 2957297, * 3 n.8 (5th
Cir., Sept. 16, 2009) (citing Sandstad, 309 F.3d at 896 – 97 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)); see Cheatham v. Allstate Ins. Co., 465 F.3d 578, 582 (5th Cir.
2006) (per curiam) (referring to this circuit’s burden-shifting standard for ADEA claims as

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“well-settled”)); see also Bell v. Raytheon, Civ. Act. No. 3:08-CV-0702-G, 2009 WL 2365454,
at *4 – 5 (N.D. Tex. July 31, 2009). Thus, in the absence of further directives from the Supreme
Court, this Court will apply the McDonnell Douglas framework in accordance with prevailing
Fifth Circuit authority.
As previously set forth, “[t]o establish a prima facie case of age discrimination, ‘a
plaintiff must show that (1) he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he was either i) replaced by someone
outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged
because of his age.’” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)
(quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (internal quotation
marks and citation omitted)). Further, in order to survive summary judgment, the plaintiff must
produce “evidence that creates a jury issue as to the employer’s discriminatory animus or the
falsity of the employer’s legitimate nondiscriminatory explanation.” Sandstad, 309 F.3d at 897.
In this case, the defendant maintains that even assuming the plaintiff has established a
prima facie case of age discrimination, his age discrimination claim still fails because he is
unable to establish that its articulated reasons for terminating him were not legitimate and nondiscriminatory but were a mere pretext for age discrimination. This Court agrees.
Having assumed that a prima facie case of age discrimination has been established, the
burden now shifts to the defendant to articulate a legitimate, non-discriminatory reason for
terminating the plaintiff’s employment. The defendant’s burden of articulating a legitimate,
nondiscriminatory reason is “only one of production, not persuasion, involving no credibility
assessments.” West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003) (quoting
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)). “To avoid dismissal on

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the employer’s motion for summary judgment, the employee [plaintiff] must show that the
employer’s putative legitimate, nondiscriminatory reason was not its real reason, but was merely
a pretext for discrimination.” Patrick v. Ridge, 394 F.3d 311, 315 - 16 (5th Cir. 2004) (internal
citations omitted). An employee plaintiff may demonstrate pretext “either through evidence of
disparate treatment or by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003) (quoting
Reeves, 530 U.S. at 143, 120 S. Ct. 2097). “In other words, after a defendant employer has met
its burden of production, an employee plaintiff, like any other civil plaintiff, must now
demonstrate that there is a material issue of disputed fact as to discrimination, the ultimate
question vel non.” Patrick, 394 F.3d at 315 – 16 (citing Long v. Eastfield Coll., 88 F.3d 300, 308
(5th Cir. 1996)).
The defendant contends that the plaintiff was terminated for insubordination and
violation of its tracheotomy assessment policy, namely Memorial Hermann Policy RST-00017.
In support of its position, the defendant has tendered its policy and procedures manual, the
position descriptions for respiratory care practitioners, corrective action personnel forms issued
to the plaintiff, monthly meeting agenda records for the April 2013 meeting and the related signin sheet, deposition transcript excerpts of the plaintiff’s oral deposition taken on January 11,
2016, and the Declaration of Respiratory Therapy Manager Darby Cruz, the plaintiff’s
immediate supervisor. (See Dkt. No. 17). The defendant avers that it relied on this information
in formulating its decision to terminate the plaintiff.
The plaintiff, in contrast, does not dispute the evidence tendered by the defendant but
instead insists that the defendant has no legitimate reason for terminating him because its
interpretation of the written policy is contrary to the policy’s plain meaning and is inconsistent

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with its longstanding practice. (See Dkt. No. 20 at 6 - 8). The Fifth Circuit has held, however,
that “[t]he ADEA was not . . . intended to transform the courts into personnel managers [as it]
cannot protect older employees from erroneous or even arbitrary personnel decisions, but only
from decisions which are unlawfully motivated.” Bienkowski v. Am. Airlines, Inc., 851 F.2d
1503, 1507 – 08 (5th Cir. 1988). As such, when an employee’s termination is premised on
accusations of misconduct and/or a violation of company policy, the relevant inquiry becomes
whether the employer had a good faith belief that the employee engaged in misconduct and/or a
violation of company policy and whether the employer’s decision to terminate the employee was
based on that good faith belief. See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165 66 (5th Cir. 1993); see also Jackson, 602 F.3d at 379.
Here, the plaintiff has presented no evidence indicating that the defendant’s actions in
terminating him were pretextual. Neither his affidavit nor his deposition testimony refers to any
age-related or age-biased comments, remarks, writings, statistics or other concrete examples
tending to suggest that age was a determinative factor in the defendant’s decision to terminate
him. As evidence of the defendant’s discriminatory motive and age-biased animus, for example,
the plaintiff insinuates that the defendant’s decision to disregard its own progressive policy when
terminating him demonstrates that it structured its termination so as to intentionally discriminate
against him.

Nevertheless, case law in the Fifth Circuit makes clear that “an employer’s

‘disregard of its own hiring system does not of itself conclusively establish that improper
discrimination occurred or that a nondiscriminatory explanation for an action is pretextual.”
E.E.O.C. v. Texas Instruments Inc., 100 F.3d 1173, 1182 (5th Cir. 1996) (citing Risher v.
Aldridge, 889 F.2d 592, 597 (5th Cir. 1989) (other citation omitted)).

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Moreover, although “[p]roof that an employer did not follow correct or standard
procedures in the termination or demotion of an employee may well serve as the basis for a
wrongful discharge action under state law,” it does not necessarily establish a violation under the
ADEA. Texas Instruments, 100 F.3d at 1182 (quoting Moore v. Eli Lilly & Co., 990 F.2d 812,
819 (5th Cir.), cert. denied, 510 U.S. 976, 114 S. Ct. 467, 126 L. Ed.2d 419 (1993) (internal
citation omitted)). “To make out an ADEA claim, the plaintiff must establish some nexus
between the employment actions taken by the employer and the employee’s age. [A] bald
assertion that one exists . . . simply will not suffice.” Id.
Indeed, the plaintiff has set forth no evidence that would create a nexus amid the
defendant’s failure to follow its own progressive policy, its selection of him for termination, and
his age; nor has he introduced evidence insinuating that the defendant structured or implemented
its policy differently in cases involving younger employees. In fact, the plaintiff has failed to
produce any direct evidence of discriminatory intent or any evidence whatsoever indirectly
demonstrating age-related discriminatory employment practices engaged in by the defendant.
Instead, he urges this Court to rely solely upon his own subjective belief that the defendant
terminated him because of his age. When questioned during his deposition as to why he believed
the defendant had discriminated against him based on his age, the plaintiff testified that he
noticed that the defendant had established a pattern of terminating older people. (See Dkt. No.
17, Ex. A at 128:12 – 130:22). When questioned in more detail as to why he harbored such a
belief, the plaintiff acknowledged that he was unaware of the specific ages of the particular
individuals he had mentioned. (Id.). He further testified that there were “[n]o other reasons,” for
his belief. (Id. at 130:20 – 22).

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Nonetheless, it is well-settled that an employee’s own subjective belief of discrimination,
regardless of how genuine, cannot serve as the basis for judicial relief. See, e.g., Price v.
Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir. 1997) (citing Waggoner, 987 F.2d at 1166
(“To establish pretext, a plaintiff cannot rely on his subjective belief that discrimination has
occurred.”); Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 119 (5th Cir. 1993) (subjective
belief that age discrimination was the reason for termination is insufficient to support an issue for
the jury when the employer articulates an adequate nondiscriminatory reason). Likewise, the
subjective perception of a fellow employee, whether a coworker or supervisor, suffers from the
same defects.

See Little v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991);

McConnell v. Thomson Newspapers, Inc., 802 F. Supp. 1484, 1504 n. 26 (E.D. Tex. 1992).
The plaintiff’s only contravention of the evidence presented by the defendant comes from
his own uncorroborated assertions which, without more, are insufficient to create a triable issue
of fact as to whether the defendant discharged him due to his age. Where, as here, the plaintiff
has not presented objective evidence refuting the defendant employer’s articulated legitimate,
nondiscriminatory reasons, pretext cannot be established by the plaintiff’s subjective perception
that discrimination motivated the employer’s actions. See Armendariz v. Pinkerton Tobacco Co.,
58 F.3d 144, 153 (5th Cir. 1995); Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 567 (5th
Cir. 1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2658, 81 L. Ed.2d 364 (1984). Therefore,
under the circumstances, the plaintiff has failed to establish that the defendant’s articulated
reasons for his termination are false--much less that they are a pretext for age discrimination.
Accordingly, the defendant is entitled to a summary judgment on the plaintiff’s age
discrimination claim.

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IV.

CONCLUSION
Based on the foregoing analysis and discussion, the defendant’s motion for

reconsideration is GRANTED; this Court’s previous Order that, in part, denied the defendant’s
motion for summary judgment on the plaintiff’s age discrimination claim is VACATED. The
defendant is entitled to a summary judgment on the plaintiff’s age discrimination claim.
It is so ORDERED.
SIGNED on this 1st day of February, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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