Roper v. Exxon Corporation ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31251
JOHN M. ROPER,
Plaintiff-Appellant,
VERSUS
EXXON CORPORATION; ET AL,
Defendants,
EXXON CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-1971-T)
October 6, 1999
Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
John M. Roper (“Roper”) appeals the grant of summary judgment
in favor of Exxon Corporation (“Exxon”) on several grounds. Roper
also argues that Exxon improperly withheld evidence during
discovery which pursuant to Fed. R. Civ. P. 37(c) prohibited its
use. We affirm the district court’s grant of summary judgment and
its admission of the evidence in question.
I. FACTS AND PROCEEDINGS
Exxon hired Roper in 1974 as an in-house attorney in its
1
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this opinion should not be published and is not precedent except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.
Houston law department. At the time, Roper was 33 years old.
Exxon in 1975 reassigned Roper to its Southeastern Production
Division in New Orleans where Roper remained until his January 30,
1997 termination.
The Exxon Law Department annually evaluates its employees
through comparative rankings based on their relative contributions
and performance among the other attorneys in their rank group. In
1993, Exxon adopted the Continuous Performance Improvement
guidelines. When employees rank in the bottom 10 percent under
these guidelines, Exxon advises them of their standing and provides
special management attention to rectify their poor showing. Under
the guidelines, Exxon may reassign or terminate these employees if
they fail to show sustained improvement.
In December 1994, when Roper was 53 years old, his supervisor,
Bill Hurt (“Hurt”) told him that he was ranked at the bottom of his
rank group. The following year Exxon again ranked its house
counsel and Hurt informed Roper in December 1995 that he would be
terminated because of his low ranking. Roper asked Hurt if he
could remain employed until he was eligible to retire with
annuitant status at age 55. Hurt said that was acceptable. On May
22, 1996, after Roper received another low ranking, the head of
Exxon’s litigation section, John Tully, informed Roper that he
would be terminated on or after November 1, 1996, when Roper would
qualify for annuitant status. Overall, under the CPI guidelines,
Exxon ranked Roper in the bottom 10 percent of his rank group from
1994 to 1996. Exxon later granted Roper’s subsequent request to
2
remain employed for tax reasons until January 1997. He officially
left Exxon on January 30, 1997.
On June 25, 1997, Roper sued Exxon under (1)The Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621
et seq.; (2) Louisiana’s Age Discrimination Act (“LADEA”), La. Rev.
Stat. Ann. § 23:971 et seq. (West 1998)2, and Louisiana’s
Commission on Human Rights Act (“LCHRA”), La. Rev. Stat. Ann. §
51:2231 et seq. (West 1999); (3) La. Civ. Code Ann. art. 2315 (West
1997); (4) Section 510 of the Employee Retirement Income and
Security Act (“ERISA”) 29 U.S.C. § 1140; and (5) the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3).
The district court granted Exxon summary judgment on all
grounds. Specifically the District Court determined that (1)
Roper’s evidence of age discrimination did not create a factual
issue under the ADEA; (2) alternatively, assuming a factual issue
did exist, Roper’s evidence did not create a fact issue whether
Exxon’s non-discriminatory reason for terminating Roper was pre-
textual or false; (3) Roper’s Louisiana discrimination claims and
Article 2315 claim were time-barred, and Article 2315 did not
provide relief for employment discrimination; (4) Roper’s evidence
did not create a factual issue concerning whether Exxon intended to
interfere with his benefit rights as required for an ERISA claim;
and (5) Roper’s evidence did not create an issue of fact as to
whether he engaged in protected conduct under the FLSA.
2
Since the filing of this lawsuit, the Louisiana Legislature
has consolidated the LADEA into the Louisiana Employment
Discrimination Law, La. Rev. Stat. Ann. § 51:2231 (West 1999).
3
Roper also contends that the district court improperly allowed
Exxon to rely on evidence of ranking lists which Exxon failed to
disclose during discovery pursuant to Fed. R. Civ. P. 37(c).
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, viewing the
facts and inferences in the light most favorable to the party
opposing the motion. See Hall v. Gillman, Inc., 81 F3d 35, 36-37
(5th Cir. 1996). Summary judgment is appropriate if the record
discloses “that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). We review a
district court’s decision on a discovery matter for abuse of
discretion. See United States v. $9,041,598.68, 163 F.3d 238, 252
(5th Cir. 1998).
III. DISCUSSION
A. ADEA
To survive summary judgment, Roper must state a prima facie
case of age discrimination under 29 U.S.C. § 623(a)(1). The
parties agree that Roper was: (1) within the protected age group;
(2) discharged; and (3) qualified for the position. The parties
dispute whether Roper has created a fact issue that either (i) he
was replaced by someone outside the protected class, (ii) replaced
by someone substantially younger, or (iii) otherwise discharged
because of his age. Bodenheimer v. PPG Industries, Inc., 5 F.3d
955, 957 (5th Cir. 1993).
4
We find that Roper has not created an issue of material fact.
First, Exxon did not replace Roper with someone outside the
protected class. Instead, Exxon assigned his workload to co-
workers and outside counsel - many of whom where not substantially
younger than Roper. Second, Roper has not shown a pattern of
discriminatory conduct by Exxon that suggests he was terminated
because of his age. Further, Exxon’s non-discriminatory reason for
terminating Roper was not pre-textual. In fact, the record
conclusively shows that Roper was terminated because of his lack of
interpersonal skills.
B. LADEA, LCHRA and Article 2315
Because we determined that Roper’s evidence does not create a
fact issue concerning his ADEA claim, Roper’s LADEA claim must also
fail since we apply the ADEA’s standards in resolving claims under
Louisiana’s employment discrimination statutes. See Hypes v. First
Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998). In addition,
Roper’s LADEA, LCHRA and Article 2315 claims are time barred
because they were not brought within one year of notification of
his termination. Jay v. International Salt Co., 868 F.2d 179, 180-
81 (5th Cir. 1989). Roper filed suit on June 25, 1997. He
contends that the prescriptive period for his claims should run
from the last notification of his termination, January 6, 1997,
because Exxon’s multiple postponements of his date of termination
rendered the initial notification vague and indeterminate.
However, Roper admits that Exxon notified him on May 22, 1996, that
he would be terminated on or after November 1996. Moreover, Exxon
5
delayed Roper’s termination date to accommodate his annuitant
status and assist him in obtaining a tax advantage. The evidence
clearly establishes that Roper filed suit more than one year after
Exxon notified him that his termination was inevitable.3
C. ERISA
Roper argues that the district court erred in determining that
his evidence did not create a fact issue concerning whether Exxon
specifically intended to interfere with his benefit rights as
required by Section 510 of ERISA. See Hines v. Massachussetts Mut.
Life Ins. Co., 43 F.3d 207, 209 (5th Cir. 1995) (holding an
essential element of a Section 510 claim is proof of defendant’s
specific discriminatory intent). Roper offers no evidence arguing
only that resolution of this issue on summary judgment is
inappropriate because it turns on a party’s state of mind. A party
cannot raise a fact issue simply by stating the defendant’s state
of mind is at issue. See McGann v. H&H Music Co., 946 F.2d 401,
408 (5th Cir. 1991).
D. FLSA
Finally, Roper contends that the district court improperly
found no issues of material fact regarding his FLSA claim. The
FLSA provides that it is unlawful: “to discharge or in any other
3
Some courts have determined that the prescription period
commences on the date of termination and not on the date of notice
of termination. See, e.g., Harris v. Home Sav. and Loan Ass’n, 663
So. 2d 92, 94-95 (La. App. 3d Cir. 1995) (LADEA claim) and Brunett
v. Dept. of Wildlife and Fisheries, 685 So. 2d 618, 621 (La. App.
1st Cir. 1988) (LADEA claim). However, unlike Harris and Brunett
where the plaintiffs received a vague and indeterminate notice of
termination, Exxon clearly told Roper far in advance that he would
be terminated on a specific date.
6
manner discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has testified or is
about to testify in any such proceeding or has served or is about
to serve on an industry committee.” 29 U.S.C. § 215(a)(3). Roper
argues that he notified Exxon on December 14, 1995, that he was
considering filing a discrimination claim. However, he says Exxon
did not notify Roper of his termination until May 22, 1996. The
record conclusively shows otherwise. Roper initially did inform
Exxon in a memorandum to Hurt that he was considering “asserting
claims and pursuing remedies under appropriate federal and state
statutes” on December 14, 1995. (R. at 705). However, in that
same memorandum, Roper refers to “the company’s decision to
terminate [him] . . . .” (R. at 705). Roper knew of his imminent
termination before he threatened legal action against Exxon.
Therefore, the district court correctly dismissed his FLSA claim.
E. Exxon’s Withholding of Evidence
Roper contends that Fed. R. Civ. P. 37(C)4 prohibits Exxon’s
use of information from certain ranking lists because Exxon failed
to disclose this information to Roper. While Exxon produced
ranking lists from 1995-97, it stated that it had no lists earlier
than 1993 and would produce only the lists it could locate.
4
Fed. R. Civ. P. 37(c)(1) provides:
A party that without substantial justification fails to
disclose information required by Rule 26(a) or 26(e)(1) shall
not, unless such failure is harmless, be permitted to use as
evidence at a . . . hearing or on any motion any witness or
information not so disclosed.
7
However, in support of its Motion for Summary Judgment, Exxon
submitted the affidavit of Mary Randolph who referred to data in
her affidavit from ranking information as early as 1987.
We do not find that the district court abused its discretion
in permitting Exxon to use such evidence in its Motion for Summary
Judgment. In fact, there is ample evidence in the record to
suggest that Roper had access to the information he argues he did
not receive. Exxon did disclose Roper’s rank group percentile for
salary budget years 1988-1997 (R. at 569). Moreover, if Roper had
more thoroughly deposed Exxon representatives regarding this issue
he would have discovered that even though Exxon’s rank groups
change from year to year, the company maintains historical rank
information on an employee by employee basis. In conclusion, the
discovery material Roper alleges Exxon withheld was available to
Roper although in a different composition than what he was seeking.
AFFIRMED.
8