The opinion
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-20309
No. 95-20572
(Summary Calendar)
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MAX G DURAN,
Plaintiff-Appellant,
versus
SCHLUMBERGER TECHNOLOGY CORPORATION,
Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(H:94-CV-1085)
_______________________________________________
February 23, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Max G. Duran appeals the district court's final
judgment granting Defendant Schlumberger Technology Corporation's
motion for summary judgment. We affirm.
I
Duran, a Hispanic, attained the position of Senior Machinist
as an employee of Schlumberger Technology Corporation
("Schlumberger"). Pursuant to a reclassification of its
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
machinists, Schlumberger designated Duran as a Machinist II.
Shortly thereafter, Schlumberger laid off Duran and eight other
employees classified as Machinists II as part of an economic
reduction in force. Duran filed suit against Schlumberger,
alleging unlawful discrimination, in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and in
violation of Title VII of the Civil Rights Act of 1964, as amended
by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.
Schlumberger filed a motion for summary judgment, which the
district court granted. Duran then filed a motion to vacate
judgment, which was denied. Duran filed a timely notice of appeal.
II
A
Duran first argues that the district court erred when it
granted Schlumberger's motion for summary judgment. We review a
district court's grant of summary judgment de novo. Armstrong v.
City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993). Summary judgment
is appropriate in cases in which there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c). In reviewing a motion for
summary judgment, we view the evidence in the light most favorable
to the non-movant, drawing all justifiable inferences in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct.
2505, 2513, 91 L. Ed. 2d 202 (1986). In an employment
discrimination case, we focus on whether a genuine issue exists as
to whether the defendant intentionally discriminated against the
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plaintiff. Armstrong, 997 F.2d at 65-66.
The Age Discrimination in Employment Act makes it unlawful "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). Title VII makes it unlawful "to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). We review
cases under the ADEA according to the same procedural requirements
applicable to Title VII cases. Bodenheimer v. PPG Indus., Inc., 5
F.3d 955, 957 n.4 (5th Cir. 1993). A discharged employee
establishes a prima facie case of employment discrimination by
demonstrating that (1) he was qualified for the position, (2) he
was discharged, (3) he was within the protected class, and (4) he
was replaced with someone outside the protected class.1 McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824-25,
36 L. Ed. 2d 668 (1973). The plaintiff's prima facie case creates
a presumption that the employer unlawfully discriminated against
the employee, requiring the employer to come forward with a
legitimate, nondiscriminatory reason for the discharge. Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.
Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). If the employer
1
A plaintiff asserting a claim for age discrimination may also satisfy
this fourth element by proving that he was replaced with someone younger or
otherwise discharged because of his age. Bodenheimer, 5 F.3d at 957.
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introduces evidence which, if true, would permit the conclusion
that the discharge was nondiscriminatory, the presumption created
by the plaintiff's prima facie case drops out of the case, leaving
the ultimate issue of whether the employer intentionally
discriminated against the plaintiff. St. Mary's Honor Ctr. v.
Hicks, ___ U.S. ___, ___, 113 S. Ct. 2742, 2748-49, 125 L. Ed. 2d
407 (1993).
Duran does not challenge Schlumberger's representation that
the reduction in force in which Duran was laid off was economically
motivated.2 Nor does Duran argue that he was laid off in a manner
inconsistent with company policy.3 Rather, Duran asserts that
Schlumberger utilized the reclassification of its employees as a
pretext for unlawful discrimination. In support of this assertion,
Duran argues (1) that he would not have been laid off had he been
classified as a Machinist III, (2) that he was classified as a
Machinist II even though he was qualified to be a Machinist III,
and (3) that younger, white employees were given favorable
treatment, such as being classified as Machinists III even though
they were only qualified to be Machinists II.
We assume for the purposes of this appeal that Duran has
satisfied the elements of a prima facie case, creating a
2
This reduction in force was the second in a series of layoffs which
culminated with the closing of the machine shop and the layoff of all remaining
machine shop employees.
3
Schlumberger's layoff policy provides that employees will be laid off
in the order of least seniority within job groups. Duran was one of nine
employees, classified as Machinists II, laid off by Schlumberger in the order of
least seniority.
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presumption that Schlumberger reclassified its employees for the
purpose of dismissing them on the basis of race and age.
Schlumberger, however, has come forward with a legitimate,
nondiscriminatory reason for its reclassification system. With a
shrinking workforce, Schlumberger asserts, it became necessary to
distinguish between employees proficient in the operation of all
three machine groups in the machine shop and employees proficient
in the operation of at least one, but not all, of the three machine
groups in the machine shop.4 Duran then had the opportunity to
come forward with evidence to create a genuine issue of fact as to
whether Schlumberger's nondiscriminatory reason was merely a
pretext for unlawful discrimination.
Duran asserts that he was classified as a Machinist II even
though he was qualified to be classified as a Machinist III.
However, Duran's supervisor's deposition, Duran's personnel file,
and Duran's own deposition confirm that he was not "proficient" in
the operation two of the three machine groups in the machine shop.
Duran further asserts that younger, white employees were classified
as Machinists III even though they were not qualified to be
classified as Machinists III. However, Duran presents no competent
evidence to dispute the deposition testimony of Duran's supervisor,
who testified that each of the employees classified as Machinists
4
For its definition of "proficiency," Schlumberger points to the
minimum requirements for the Machinist III position, as stated in company
documents. According to these documents, Machinists III "[m]ust be able to set
up and operate a conventional lathe and mill with a high degree of efficiency and
quality, without assistance . . . [and m]ust be able to set up and operate
CNC [computer numerical control] machines without detailed instructions."
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III had completed the training necessary to demonstrate proficiency
on all three of the machine groups in the machine shop.5 Duran
also alleges that Schlumberger gave preferential treatment to a
younger, white employee by allowing him to transfer into the
machine shop after Duran was laid off. However, Duran presents no
evidence to dispute Schlumberger's representation that this
employee was qualified as a Machinist III, and therefore was not
within Duran's job group.
Thus, Duran has presented no evidence sufficient to create a
genuine issue of material fact with regard to the ultimate issue of
whether Schlumberger intentionally discriminated against Duran on
the basis of his age or race. Accordingly, the district court did
not err in granting Schlumberger's motion for summary judgment.
B
Duran next argues that the district court erred when it denied
Duran's motion to vacate judgment, filed in accordance with FED. R.
CIV. P. 60(b). We review a district court's ruling on a Rule 60(b)
motion for abuse of discretion. First Nationwide Bank v. Summer
House Joint Venture, 902 F.2d 1197, 1200-01 (5th Cir. 1990).
Duran based his Rule 60(b) motion on several newly discovered
5
Duran offers his own affidavit stating that he was more qualified
than several named employees classified as Machinists III. However, mere
conclusory allegations will not establish competent summary judgment evidence.
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825,
113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). Further, Duran offers his own affidavit
stating that several named employees classified as Machinists III did not operate
the "4-axis mill," one type of computer numerical control machine. However, the
fact that these employees may not have operated one type of the computer
numerical control machines in the machine shop does not contradict Duran's
supervisor's testimony that these employees were able to set up and operate
computer numerical control machines without detailed instructions, in accordance
with Schlumberger's requirements for the Machinist III position.
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electronic mail messages relating to the reclassification of
several employees from Machinist II to Machinist III shortly before
Duran was laid off. To prevail on a Rule 60(b) motion based on
newly discovered evidence, the movant must show that the evidence
is material and controlling and that the evidence clearly would
have produced a different result if presented before the original
judgment. New Hampshire Ins. Co. v. Martech USA, Inc., 993 F.2d
1195, 1200-01 (5th Cir. 1993). The electronic mail messages
reflect that one employee was erroneously classified as Machinist
II due to a clerical error, that one employee successfully passed
a reclassification test, and that two employees had successfully
completed training that qualified them to be classified as
Machinists III.6 On this record, we hold that the district court
did not abuse its discretion in finding that the new evidence would
not have clearly produced a different result if presented before
the district court's original judgment. Accordingly, the district
court did not err when it denied Duran's Rule 60(b) motion to
vacate judgment.
III
For the foregoing reasons, the district court's final
judgment, granting Schlumberger's motion for summary judgment, is
AFFIRMED.
6
Duran presents no competent evidence that he sought additional
training, no evidence that he pursued a reclassification test, and no evidence
that the employees named in the electronic mail messages were not qualified to
be classified as Machinists III.
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