Robideaux v. ISB Financial Corp

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30649
Summary Calendar
WAYNE ROBIDEAUX,
Plaintiff-Appellant,
versus
ISB FINANCIAL CORP.; IBERIABANK,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-751
--------------------
June 26, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Wayne Robideaux appeals the district court’s grant of
summary judgment for the defendants in his action for damages
under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621, et seq.; the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601 et seq.; and the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1001, et seq.
Robideaux argues on appeal that the district court’s finding
that he had suffered no adverse employment action was clearly
erroneous as a matter of law. He contends that the evidence
*
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that this opinion should not be published and is not precedent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.
No. 99-30649
-2-
showed that he had been demoted, that his major responsibilities
had been taken away and assigned to younger executives, and that
he was denied a pay increase in 1997 prior to being discharged.
He argues that the Bank’s severance proposal established a prima
facie case of age discrimination as a constrictive discharge
because each choice facing him made him worse off than before the
discrimination occurred. He argues that the evidence showed that
the Bank’s purported reasons for demoting him, taking away his
responsibilities, denying him a pay increase, and ultimately
asking for severance were false and a pretext for discrimination.
He argues that the district court erred in relying on the stray
remarks doctrine because there was direct evidence of
discrimination. He argues that the Bank’s purported reasons
included prohibited factors, such as his health condition.
Assuming for argument’s sake that Robideaux did establish a
prima facie case by virtue of the alleged adverse employment
actions and the offer of the severance package, Robideaux has not
produced evidence to show that the defendants’ reasons for the
employment decisions, reorganization and a critical performance
appraisal, were a pretext for age discrimination. The alleged
age-related comments cited to by Robideaux as direct evidence of
discrimination are nothing more than stray remarks. Brown v. CSC
Logic, Inc., 82 F.3d 651, 655 (1996). Larrey Mouton explained
that the personnel changes which occurred were in response to the
changes in the size and scope of the bank. As Robideaux himself
points out, even Ronnie Foret’s duties, which had initially been
expanded, had to be further divided among other management people
No. 99-30649
-3-
as the bank continued to grow. This fact supports the
defendants’ explanation for the changes in Robideaux’s
responsibilities and weighs against a finding of age
discrimination.
Another factor weighing against a finding of age
discrimination is the fact that Mouton, himself aged 51 at the
time, hired Robideaux at age 56. When the same actor hires and
fires an employee, it creates an inference that age
discrimination was not the motivation behind the termination.
Brown, 82 F.3d at 658. The fact that the actor involved in both
employment decisions is also a member of the protected class
serves to enhance the inference. Id.
The facts Robideaux points to as evidence of age
discrimination are not sufficient to overcome the evidence
produced by the defendants that there were legitimate business
reasons for the actions taken in connection with Robideaux’s
employment.
Robideaux contends that the evidence showed that the Bank’s
purported reasons for the adverse action included the prohibited
factor of his health condition, specifically, prostate disease,
for which he had taken leave to be treated in September through
November 1997. He contends that this was the only event which
occurred that fall which could have prompted Mouton’s decision to
offer the severance package. Robideaux does not specifically
make any argument about FMLA retaliation. To the extent that he
is arguing his FMLA claim separately from his ADEA claim, his
FMLA claim fails for the same reasons as his ADEA claim.
No. 99-30649
-4-
Robideaux has not offered any evidence showing a connection
between his use of leave and the decision to offer him a
severance package. Chaffin v. Carter Co., Inc., 179 F.3d 316,
319 (5th Cir. 1999).
Robideaux argues that the district court erred in finding
that he was not entitled to accelerated vesting of stock options
upon his “involuntary” early retirement under the bank’s
Incentive Stock Option Plan (ISOP) and Management Recognition and
Retention Plan (MRRP) plans. Robideaux argues that he is
entitled to 100% of the shares in both the ISOP and MRRP. His
contention rests on the proposition that both plans specify
normal retirement age as 65 or “such earlier age as may be
specified in applicable plans or policies of the Corporation.”
His evidence that there was an “applicable plan or policy”
whereby employees could retire before age 65 is: (1) the Bank’s
401(k) plan allowed for retirement earlier than age 65; and
(2) the Bank offered four other employees “early” retirement
before age 65.
Robideaux does not cite any provision in any plan, 401(k),
ISOP or MRRP, which provides for a normal retirement age other
than 65. All applicable retirement plans clearly state that the
normal retirement age is 65. Robideaux contends that the Bank
maintained a policy of allowing persons to retire before age 65
because four employees were allegedly allowed to retire with full
401(k) and severance benefits in 1994. These individuals were
separated from the Bank as part of a reduction-in-force after a
reorganization in 1994. Any 401(k) benefits received by these
No. 99-30649
-5-
individuals was pursuant to the vesting schedule included in the
401(k) plan in effect in 1994. The 401(k) plan was amended in
1995 and again in 1997 and provided for retirement at age 65 when
Robideaux left the Bank’s employ in 1998.
Robideaux refers to a provision in the 401(k) plan
authorizing “disability retirement” at an earlier age. However,
Robideaux has not asserted that he was denied disability benefits
pursuant to the 401(k) plan.
Robideaux does not cite any evidence to support his claim
that in January 1998, there was a Bank policy or plan which
permitted retirement before age 65. Because Robideaux had not
reached age 65 by the time he left the Bank’s employ, his shares
in the ISOP and MRRP were forfeited.
Robideaux argues that under the provisions of a February
1995 severance agreement, he was entitled to two years’ pay and
two years’ benefits under all employee benefit plans due to a
“change in control” of the corporation. Robideaux contends that
there was a “change in control” of the Bank because it was
converted from a mutual savings bank to a stock company,
effective April 6, 1995, which change was reported to the SEC.
The severance agreement was entered into among ISB Financial
Corporation (the “Corporation”), Iberia Savings Bank (the
“Savings Bank”), collectively referred to as the “Employers,” and
Robideaux (the “Executive”). Robideaux signed the severance
agreement on February 15, 1995, which provided that “[i]f the
Executive’s employment by the Employers shall be terminated
subsequent to a Change in Control of the Corporation by (i) the
No. 99-30649
-6-
Employers other than for Cause, Disability, Retirement, or as a
result of the Executive’s death, or (ii) the Executive for Good
Reason” he shall be entitled to two years’ salary and benefits.
The severance agreement is an employee benefit plan governed
by the Employee Retirement Income Security Act (ERISA), 29 U.S.C.
§§1001 et seq.; see Collins v. Ralston Purina Co., 147 F.3d 592
(7th Cir. 1998) (change in control severance agreement was ERISA
plan). The agreement does not contain a provision allowing an
administrator discretionary authority to determine eligibility
for benefits or to interpret the terms of the plan. Accordingly,
we construe the terms of the plan de novo. Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Wegner v. Standard
Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997).
Robideaux does not present any facts to prove that a “change
in control” within the meaning of the agreement occurred. He
refers to the consolidated financial statement which is contained
in form 10Q (a June 1995 quarterly report) and which explains
that a stock conversion resulted in an increase in paid in
capital. This report notes that Iberia Savings Bank converted
from a state chartered mutual savings bank to a state chartered
stock savings bank and the ISB Financial Corporation acquired all
of the common stock of the Bank. This indicates a change in the
“Bank” not the “Corporation.”
Robideaux has not submitted any evidence of a “change in
control” of the corporation as defined in the severance
agreement. Because no “change in control” of the corporation
No. 99-30649
-7-
occurred, Robideaux is not entitled to any benefits pursuant to
the 1995 severance agreement.
Robideaux argues that the defendants breached their
fiduciary duty by refusing payment of vested plan benefits under
the ISOP, MRRP, and the 1995 severance agreement. As discussed
above, Robideaux was not entitled to any benefits under the
severance agreement because no “change in control” of the
corporation occurred. He was not entitled to benefits under the
ISOP or MRRP because he had not reached the normal retirement age
of 65. The fact that Robideaux has not been denied any benefits
for which he was eligible precludes his claim that the defendants
failed to administer the plans in his interest.
AFFIRMED.