     Case: 15-60467        Document: 00513299489        Page: 1   Date Filed: 12/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-60467                        United States Court of Appeals
                                   Summary Calendar                               Fifth Circuit

                                                                                FILED
                                                                         December 8, 2015
STEVE G. RUTH,                                                             Lyle W. Cayce
                                                                                Clerk
                 Plaintiff - Appellant

v.

EKA CHEMICALS, INCORPORATED,

                 Defendant - Appellee




                     Appeal from the United States District Court
                       for the Northern District of Mississippi
                               USDC No. 1:13-CV-165


Before REAVLEY, SMITH, and HAYNES, 1 Circuit Judges.
PER CURIAM:*
       Steve G. Ruth filed an age discrimination claim against Eka Chemicals.
The district court granted the employer’s summary judgment motion and Ruth
appeals. We affirm the district court’s judgment because Ruth failed to prove
that age was the “but-for” cause of his employment termination.



       1   Judge Haynes concurs in the judgment only.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 15-60467
      Ruth worked for Eka Chemicals as a Chief Technician for seventeen
years, during which time he sustained a non-work related ankle injury. The
injury required several surgeries which resulted in Ruth being away from work
on short-term disability. After a few months, Ruth’s physician released him to
return to work with considerable restrictions – no climbing, bending, stooping,
squatting, pushing, pulling or lifting over 20 pounds. Eka allowed Ruth to
return to work in a limited capacity, but the restrictions prevented him from
performing the essential duties of his job.     Ruth was permitted to train
someone for a chief technician position, but due to the restrictions, was
returned to short-term disability status. He was subsequently terminated for
violating the company’s disability policy when it was discovered that, while
away from work, Ruth participated in activities such as golf, coaching softball
and bending and lifting. Ruth contends that he was not prohibited from doing
these activities as long as he was away from work and claimed that Eka
terminated him because of his age in violation of the Age Discrimination in
Employment Act (ADEA).
      To prevail on an ADEA claim, “[a] 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.” Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S. Ct. 2343, 2351 (2009). The
defendant has no burden of proof while plaintiff has this burden. Ruth would
have to show that his employment was terminated only because of his age.
      Ruth asserts that Eka’s proffered reasons for the termination were
pretextual, that he was replaced with someone younger, and that Eka had a
pattern of age discrimination.    However, he does not prove that he was
dismissed only because of his age. Moreover, the assertion that Eka had a
pattern of age discrimination was unsupported and inconsistent with the


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                                No. 15-60467
record which reflects that at the time of Ruth’s termination, seven of Eka’s 11
chief technicians were age 48 and over.
      AFFIRMED.




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