                    Revised February 12, 2001

                 UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                   ___________________________

                          Nos. 99-50742
                   ___________________________

                        ARTURO P. MEDINA,

                                        Plaintiff-Appellant,

                               v.

        RAMSEY STEEL COMPANY, INC. AND DOUG RAMSEY, JR.,

                                        Defendants-Appellees,

                       __________________

                          No. 99-51171
                       __________________


                        ARTURO P. MEDINA,

                                        Plaintiff-Appellee,

                               v.

        RAMSEY STEEL COMPANY, INC. AND DOUG RAMSEY, JR.,

                                        Defendants-Appellants.

       __________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
       __________________________________________________

                        January 29, 2001

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:


                                1
     Arturo P. Medina brought suit against his employer Ramsey

Steel Company, Inc. (“Ramsey Steel”) and Doug Ramsey, an employee

of the corporation, alleging that they refused to promote him

because of his age and terminated him in retaliation for

complaining of age discrimination.   Medina began working for

Ramsey Steel in 1968 when he was thirty-two years of age.    Six

years later, he left Ramsey steel in search of other career

opportunities which included a job selling real estate for a

Century 21 franchise.   In 1978, Medina returned to Ramsey Steel

and worked as a detailer just as he had prior to leaving the

company.   A detailer prepares shop drawings for the steel

components that Ramsey Steel sells to its customers.

     Although Medina worked as a detailer for the balance of his

employ at Ramsey Steel, from 1978 to 1994, he sought promotions

on three occasions.   A few years after his return to Ramsey

Steel, Medina expressed interest in an outside sales position.

Although Ramsey Steel never officially stated that the position

was open, Ramsey Steel awarded the job to Joe Menchey, a man

twenty-five years Medina’s junior.   Sometime in 1989 or 1990,

Menchey resigned and Medina again expressed interest in the

outside sales position.   According to Medina, Ramsey Steel’s

president, Greg Ramsey, told him that he did not have the right

“ingredients” for the job.   After offering the job to an employee

who declined it, the position remained open for several years



                                 2
until Ramsey Steel hired Fred Chavarria, a man twenty-five years

Medina’s junior.

     During the time that the outside sales position was vacant,

Ismael Legarreta, an Assistant Vice-President at Ramsey Steel,

held a meeting to discuss the newly created lead detailer

position.    Medina claims that during this meeting the issue of

productivity arose and that Lupe de la Cruz believed that the

solution was to “get rid of all the old people.”    De la Cruz

received no reprimand for this comment and, in fact, was promoted

to the new lead detailer position.    Ramsey Steel claims that

Medina never applied for the lead detailer position but Medina

says that Legarreta told him and other detailers that they would

all be considered for the position.

     After he was passed over for the lead detailer position,

Medina began complaining about age discrimination to his fellow

workers.    Medina contends that prior to these complaints, his

personnel record contained only one complaint about his work.

After he complained, Medina’s supervisors entered at least eight

complaints in his personnel file, and, on November 22, 1993, Doug

Ramsey placed him on probation for ninety days.

     On December 3, 1993, Medina mailed a charge to the Texas

Commission on Human Rights (“TCHR”) alleging age discrimination.

Medina amended this charge on December 7, 1993.    The Equal

Employment Opportunity Commission (“EEOC”) received notice of the



                                  3
charge on December 20, 1993.   According to Medina, in February of

1994, he attended a meeting at which Ismael Legarreta told Medina

about Ramsey Steel’s chain of command and then said, “I don’t

care if you have been with the company five years or fifty years.

And I don’t care if you sue me or take me to court.       It’s going

to be hard for you to collect.”        Doug Ramsey, one of Medina’s

supervisors, terminated him and memorialized the decision in a

memorandum dated March 10, 1994.

     On November 29, 1994, Medina filed his Original Petition in

state court alleging discriminatory non-promotion and retaliatory

discharge under Chapter 21 of the Texas Labor Code.       Ramsey Steel

and Doug Ramsey removed the action to federal court claiming that

it was preempted by the Federal Age Discrimination in Employment

Act (“ADEA”).   The federal court remanded the case to the state

court on February 2, 1995.

     After an initial trial setting and the granting of two

continuances, the case sat idle for thirty-three months until it

was transferred to another judge who set it for trial on May 10,

1999.   In May of 1999, Medina amended his petition to assert a

claim for back pay and liquidated damages.       After this amendment,

Ramsey Steel and Doug Ramsey removed the case to federal court

which immediately scheduled the case for trial on July 26, 1999.

Medina moved to remand the action back to state court and the

federal district court denied the motion.       On July 27, 1999, the



                                   4
district court granted Ramsey Steel’s and Doug Ramsey’s motion

for summary judgment on all of Medina’s claims.

       The district court held that Medina failed to raise a fact

issue on whether he was qualified for the outside salesman

position.    As to the lead detailer position, the district court

held that Medina failed to carry his ultimate burden of

demonstrating that the failure to promote was based on Medina’s

age.    In granting summary judgment on Medina’s retaliation claim,

the district court held that Medina had failed to establish that

his complaints of age discrimination were the cause of his

termination.    Medina also appeals the district court’s denial of

his motion to remand to state court.     Ramsey Steel appeals the

district court’s denial of its motion for attorney’s fees.

Because they relate to the same set of facts, we consolidated the

appeals.

                                 I.

       The district court denied Medina’s motion to remand this

case to state court.    Medina argues that remand was appropriate

because his original pleadings alleged discrimination and

retaliation under Texas law only.     However, Medina seeks

unlimited back pay and liquidated damages.     We review de novo the

denial of a motion to remand.    See Carpenter v. Wichita Falls

Indep. Sch. Dist., 44 F.3d 362, 365(5th Cir. 1995).




                                  5
     The plaintiff is “the master of her complaint,” and, as

such, “[a] determination that a cause of action presents a

federal question depends upon the allegations of the plaintiff’s

well-pleaded complaint.”    Id. at 366.     When a plaintiff has a

choice between federal and state law claims, she may proceed in

state court “on the exclusive basis of state law, thus defeating

the defendant’s opportunity to remove.”        Id. (emphasis added).

Thus, to support removal, the defendant must show that a federal

right is an essential element of the plaintiff’s cause of action.

See id.

     Medina’s amended pleadings seek back pay and liquidated

damages as provided under the ADEA. See 29 U.S.C. § 626(b).

Texas law caps lost earnings at two years and does not provide

for the award of liquidated damages.       TEX. LAB. CODE ANN. §

21.258(c)(Vernon 1996).    From the face of Medina’s well-pleaded

complaint, it is clear that Medina is not proceeding on the

exclusive basis of state law.   Instead, the damages he seeks are

authorized only by federal law.        See id.; 29 U.S.C. § 626(b).

Therefore, the district court’s denial of Medina’s motion to

remand was appropriate.

                                  II.

     Medina’s age discrimination claims are based on the fact

that he was passed over for promotion on three separate

occasions.   The district court granted summary judgment against


                                   6
Medina on these claims.    We review a district court’s grant of

summary judgment de novo.     See Bodenheimer v. PPG Indus., Inc., 5

F.3d 955, 956(5th Cir. 1993).    As to Medina’s age discrimination

claims, we reverse.

                                  A.

     Two of Medina’s three age discrimination claims are based on

Ramsey Steel twice passing him over for promotion to outside

salesperson.   The district court granted summary judgment against

Medina on the ground that he failed to raise a genuine issue of

material fact as to whether he was qualified for the position in

that he did not demonstrate how he met Ramsey Steel’s

“substantial sales experience” requirement.

     We analyze employment discrimination claims under a three-

step, burden-shifting framework.1      See Lindsey v. Prive Corp.,

987 F.2d 324, 326(5th Cir. 1993).      First, the employee must raise

a genuine issue of material fact as to each element of his prima

facie case.    See id.   Then, the employer must articulate a

legitimate, nondiscriminatory reason for its employment decision.

See id.   Finally, the employee must raise a genuine issue of

material fact as to whether the employer’s proffered reason was

merely a pretext for age discrimination.      See id.




     1
     Texas courts also apply this three-step analysis to age
discrimination cases. See Farrington v. Sysco Food Serv., Inc.,
865 S.W.2d 247, 251(Tex. App.–Houston[1st] 1993, writ denied).

                                   7
     The first issue for our discussion is whether Medina has

raised a genuine issue of material fact as to each element of his

prima facie case.    In an age discrimination, failure to promote

case, the employee must demonstrate that 1) he belongs to the

protected class, 2) he applied to and was qualified for a

position for which applicants were being sought, 3) he was

rejected, and 4) another applicant not belonging to the protected

class was hired.    See id. at 326-27.

     It is undisputed that Medina is within the protected class,

that he sought promotion to the job, that Ramsey Steel rejected

him, and that individuals not within the protected class filled

the outside sales position both times it came open.   The focus of

Ramsey Steel’s attack on Medina’s prima facie case, and the basis

for the district court’s grant of summary judgment, is that

Medina is unqualified for the outside sales position because he

failed to meet the “substantial sales experience” requirement.

This was the only qualification Ramsey gave for the position; so,

the crucial, central issue is whether an employer can defeat an

employee’s claim via summary judgment at the prima facie case

stage by claiming that he failed to meet entirely subjective

hiring criteria.    We do not think so.

     While subjective criteria like that set forth by Ramsey

Steel “may serve legitimate functions, they also provide

opportunities for unlawful discrimination” because the criteria



                                  8
itself may be pretext for age discrimination.     Id. at 327.   As we

have indicated before, an employer may not “utilize wholly

subjective standards by which to judge its employees’

qualifications and then plead lack of qualification when its

promotion process . . . is challenged as discriminatory.”

Crawford v. Western Elec. Co., 614 F.2d 1300, 1315(5th Cir.

1980).

     For these reasons, other circuits have concluded that a

prima facie case is established once the plaintiff demonstrates

that objective employment qualifications have been met.       See

Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135(7th Cir.

1985); Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339,

342(10th Cir. 1982); Lynn v. Regents of the University of

California, 656 F.2d 1337, 1344(9th Cir. 1981).    For example, in

Burrus v. United Telephone Co. of Kansas, Inc., the Tenth Circuit

concluded that objective qualifications are best treated at the

first step of the analytical framework and that subjective

criteria and other supporting evidence are best treated at the

second and third steps.   Burrus, 683 F.2d at 342.    If a failure

to satisfy subjective hiring criteria could defeat an employee’s

prima facie case, “the court then would not be required to

consider evidence of pretext.”   Id.   “Thus the use of the

subjective hiring criteria would go unchallenged.”     Id.      This

result would “collapse the analysis into a single initial step at

                                 9
which all issues would be resolved.”       Id.   For these reasons, it

is inappropriate to decide as a matter of law than an employee is

unqualified because he has failed to meet entirely subjective

hiring criteria.    See Lindsey v. Prive Corp., 987 F.2d 324,

327(5th Cir. 1993).   Instead, an employee must demonstrate that

he meets objective hiring criteria at the prima facie case stage,

and the issue of whether he meets subjective hiring criteria is

dealt with at the later stages of the analysis.       See id.; Burrus,

683 F.2d at 342.

     Another reason for this approach is to prevent the judge

from making credibility determinations in the summary judgment

context.    See Lindsey, 987 F.2d at 327-28.     In Lindsey v. Prive

Corp., a gentlemen’s club failed to promote two waitresses to

dancers because they were not “beautiful, gorgeous, and

sophisticated.”    Id. at 326.   The waitresses sued the club

claiming age discrimination.     See id.   The district court granted

summary judgment in favor of the club on the ground that the

waitresses had failed to meet its subjective hiring criteria.       In

reversing the district court’s decision, we acknowledged that an

employer can make employment decisions based on subjective

criteria.   See id. at 328.    However, we also said that

distinguishing legitimate employment decisions based entirely on

subjective criteria and those in which subjective criteria serve

as pretext for discrimination can only be made by weighing the


                                  10
employer’s credibility.    See id. at 327-28.   “Beauty is in the

eye of the beholder and the beholder in this case” is the

employer, but the “question left for the judge or jury will not

require second guessing of the [club’s] personnel decisions but,

rather, will require an evaluation of the credibility of the

defendant’s testimony about the reasons for that decision.”     Id.

at 328.    In short, “the trier-of fact will evaluate truthfulness,

not beauty.”    Id.

     Similarly, what constitutes “substantial sales experience”

is in the eye of the beholder.   While Ramsey Steel is the

beholder, it is the trier-of-fact’s duty to determine whether

Ramsey Steel beheld a man it felt was unqualified for the job or

a man it felt was too old for the job.   Because Ramsey Steel’s

hiring criterion was entirely subjective, Medina’s claims could

not be defeated on summary judgment at the prima facie case

stage.

     Thus, the burden shifted to Ramsey Steel to articulate a

legitimate, non-discriminatory reason for its decision.      See id.

at 326.    Ramsey Steel asserted that Medina is not qualified for

the job so the burden shifted to Medina to produce evidence

raising a fact issue as to whether Ramsey Steel’s reason was

pretextual.    A review of the record demonstrates that Medina has

done so.




                                 11
     Medina offered evidence that he had experience selling real

estate for Century 21.   He also offered evidence that he had more

sales experience and more experience in the industry than the

individual promoted over him.   When he expressed interest in the

job, Medina claims the company president told him that he did not

have the right “ingredients” rather than saying he was

unqualified.   Finally, Medina offered evidence that, near the

time Medina was passed over in favor of a younger man, Lupe de la

Cruz told the Assistant Vice-President, Ismael Legarreta, that he

should “get rid of all the old people.”    Medina has offered

evidence that Legarreta was involved in hiring decisions and that

he made no response to De la Cruz’s remark.    All of this evidence

raises a genuine issue of material fact as to whether Ramsey

Steel’s proffered reason for failing to promote Medina was merely

a pretext for age discrimination.    Therefore, the district

court’s decision to grant summary judgment against Medina was

inappropriate.

                                B.

     The district court granted summary judgment against Medina

on his claim that Ramsey Steel failed to promote him to the lead

detailer position because of his age.    The district court held

that Medina had failed to raise a genuine issue of material fact

as to his ultimate burden of demonstrating age discrimination.

We disagree.



                                12
     Again, in a failure to promote case, the employee has the

initial burden to satisfy his prima facie case by showing that 1)

he belongs to the protected class, 2) he applied to and was

qualified for a position for which applicants were being sought,

3) he was rejected, and 4) another applicant not belonging to the

protected class was hired.   See id. at 326-27.   The burden then

shifts, and the employer must articulate a legitimate,

nondiscriminatory reason for its decision.   See id. at 326.

Finally, the employee must show that the employer’s proffered

reason is merely a pretext for age discrimination.    See id.

     Medina has raised a genuine issue of fact with respect to

his prima facie case.   It is undisputed that Medina belongs to

the protected class, that he was passed over for promotion, and

that someone not within the protected class was hired.   Further,

Ramsey Steel does not argue that Medina was unqualified for the

lead detailer position.   Ramsey Steel attacks Medina’s prima

facie case by contending that Medina failed to apply for the job

of lead detailer by writing his name on a bulletin board sign-up

sheet.   While Ramsey Steel has proffered evidence to this effect,

Medina has countered with evidence that the Assistant Vice-

President of the Company, Ismael Legarreta, held a meeting in

April of 1993 in which he told Medina and other detailers that

they would all be considered for the position without having to

sign on the sign-up sheet.   Therefore, Medina has raised a fact


                                13
issue as to whether he applied for the job and thus has met his

burden at the prima facie case step of the analysis.

     To satisfy its burden of articulating a legitimate,

nondiscriminatory reason for failing to promote Medina, Ramsey

Steel asserted that Medina would have been turned down for the

position because of poor performance.   The burden then shifted to

Medina to show that Ramsey Steel’s proffered reason was merely a

pretext for discrimination.   See id.   To meet this burden, Medina

pointed to the fact that the evidence Ramsey Steel cites to

support its proffered reason for not promoting Medina relates to

incidents of poor performance that occurred after the hiring

decision was made.   In fact, the district court stated that

Ramsey Steel’s legitimate, nondiscriminatory reason “fails” for

the same reason. Medina also offered evidence that he was a more

experienced detailer than the man actually hired, Lupe De la

Cruz.

     Medina had twenty-one years of experience with the company,

eighteen of which were as a detailer, while De la Cruz was only

twenty-two or twenty-three years old, with far less detailing

experience.   Finally, Medina offered evidence that De la Cruz

told Legarreta that the solution to the company’s productivity

problems was to “get rid of all the old people.”   According to

Medina, Legarreta did not reprimand De la Cruz for this remark or

respond to it in any way.   In fact, De la Cruz was promoted to



                                14
the position of lead detailer.   Despite this evidence of pretext,

the district court granted summary judgment on the ground that

Medina had failed to raise a genuine issue of material fact as to

his ultimate burden of proving age discrimination.

      Remarks may serve as sufficient evidence of age

discrimination if they are: 1) age related, 2) proximate in time

to the employment decision, 3) made by an individual with

authority over the employment decision at issue, and 4) related

to the employment decision at issue.     See Brown v. CSC Logic,

Inc., 82 F.2d 651, 655-56(5th Cir. 1996).    Here, De la Cruz’s

comment was clearly age related, was made when the lead detailer

opening was announced and being discussed, and related to the

lead detailer promotion decision.     Ramsey Steel argues, however,

that, since De la Cruz is not an individual with authority over

employment decisions, the comment is not sufficient evidence of

age discrimination to allow Medina to survive summary judgment.

While it is true that De la Cruz did not have hiring authority,

this fact is not necessarily lethal to Medina’s claim.

     For example, in Haas v. ADVO Systems, Inc., the plaintiff

applied for a sales manager job and had an interview with the

defendant’s Vice-President for Sales.    168 F.3d 732, 732(5th Cir.

1999).   During this interview, the Vice-President told the

plaintiff that his only concern about hiring him was his age.

See id. at 733.   The Vice-President for Sales then recommended


                                 15
that the Regional Vice-President not hire the plaintiff.      See id.

This was the only evidence of age discrimination the plaintiff

offered in Haas.     Id.   Although the ultimate hiring authority

rested with the Regional Vice-President and not the Vice-

President for Sales who made the age based comment, we held that

the comment precluded summary judgment.      See id. at 733-34.     In

order to grant summary judgment after such a comment is made, we

would have had to infer that the comment was inconsequential to

the decision of the person with ultimate hiring authority.        See

id. at 733.   In the summary judgment context, we are not

permitted to draw such an inference.      See id.

     As in Haas, to grant summary judgment in this case we must

infer from this evidence that De la Cruz’s comment was

inconsequential to Legarreta’s hiring decision despite the fact

that he was silent in response to it.     This is an inference we

cannot draw as we must make all inferences in favor of the

nonmovant, Medina.    Therefore, summary judgment on Medina’s claim

of age discrimination based on a failure to promote him to the

position of lead detailer was inappropriate.

                                  III.

     Medina claims that he was unlawfully terminated in

retaliation for opposing Ramsey Steel’s discriminatory practices.

The district court granted summary judgment on Medina’s unlawful

retaliation claim on the ground that Medina had failed to raise a


                                   16
genuine issue of fact as to whether his protected conduct was a

cause-in-fact of his termination.        We disagree.

     The analytical framework for a retaliation claim is the same

as that used in the employment discrimination context.2      See

Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122(5th Cir.

1998).   Thus, once the plaintiff establishes a prima facie case

of unlawful retaliation, the burden shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for the adverse

employment action.     See id.    Then, the plaintiff must adduce

evidence “that would permit a reasonable trier or fact to find

that the proffered reason is a pretext for retaliation.”       Id.

This burden requires the plaintiff to demonstrate that the

adverse employment action would not have occurred “but for” the

protected activity.     See id.

     A plaintiff establishes a prima facie case of unlawful

retaliation by demonstrating 1) he engaged in protected activity,

2) he suffered an adverse employment decision, and 3) a causal

link exists between the protected activity and the adverse

employment decision.     See Long v. Eastfield College, 88 F.3d 300,



     2
     Texas courts have articulated the same elements for
establishing a prima facie case of retaliation as federal courts.
See Cox & Smith, Inc. v. Cook, 974 S.W.2d 217, 223(Tex. App.–San
Antonio 1998, pet. denied). Texas courts have not fleshed out
the remaining steps of the analysis but have said that they would
look to interpretation of federal civil rights law in doing so.
See Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 315
n.2(Tex. App.–Austin 1997, writ denied).

                                    17
305 n.4(5th Cir. 1996).   Ramsey Steel concedes that Medina was

engaged in protected activity and that he suffered an adverse

employment decision in that he was terminated on March 10, 1994.

However, Ramsey Steel attacks Medina’s prima facie case by

asserting that he has failed to establish a “causal link” between

the protected activity and the termination.

     A “causal link” is established when the evidence

demonstrates that “the employer’s decision to terminate was based

in part on knowledge of the employee’s protected activity.”

Sherrod, 132 F.3d at 1122.   The Eleventh Circuit has held that

the “causal link” element is satisfied when the plaintiff shows

that the employment decision and his protected activity “were not

wholly unrelated.   Simmons v. Camden County Bd. of Educ., 757

F.2d 1187, 1189(11th Cir. 1985).       Doug Ramsey is the Ramsey Steel

employee who terminated Medina.    He memorialized his decision in

a handwritten note dated March 10, 1994.      It is clear that Doug

Ramsey knew about Medina’s complaint to the TCHR because he sent

a response to Medina’s complaint to the TCHR dated January 5,

1994.   This evidence is sufficient to demonstrate that Doug

Ramsey’s knowledge of the complaint and that the two were not

wholly unrelated.   Therefore, Medina has met the “causal link”

element of his prima facie case.

     The burden of production now shifts to Ramsey Steel to

articulate a legitimate, nondiscriminatory reason for its


                                  18
termination of Medina.   See Long, 88 F.3d at 305.   This burden is

satisfied by introducing evidence which, if true, would permit

the trier-of-fact to conclude that the termination was

nondiscriminatory.   See id.    Ramsey Steel asserts that Medina was

terminated because of his poor work performance and supports this

assertion with evidence of numerous instances of poor work

performance as documented in Medina’s personnel file.    Therefore,

Ramsey Steel has satisfied its burden of articulating a

legitimate, nondiscriminatory reason for terminating Medina.

     Finally, Medina has the burden to adduce evidence that

Ramsey Steel’s proffered reason for his termination was merely a

pretext for age discrimination.     See Sherrod, 132 F.3d at 1122.

To meet this burden, Medina must demonstrate that he would not

have been terminated “but for” engaging in protected activity.

See id. at 1123.   While this portion of the analysis may seem

identical to the “causal link” step in the prima facie case, the

burden here is more stringent.    See McMillan v. Rust Coll., Inc.,

710 F.2d 1112, 1116-1117(5th Cir. 1983).     The plaintiff must

reveal “a conflict in substantial evidence on the ultimate issue

of retaliation in order to withstand a motion for summary

judgment.”   Sherrod, 132 F.3d at 1122.

     In Long v. Eastfield College, the plaintiffs sued their

employer for retaliatory discharge in violation of Title VII.     88

F.3d 300, 304(5th Cir. 1996).    One of the plaintiffs introduced


                                  19
evidence that her performance evaluations never fell below

“exceeds” until after she complained to her employer about

another employee’s harassing conduct.    See id. at 308.    She also

introduced evidence that no other employee had been terminated

for the reason her employer said she was terminated.       See id.   We

held that such evidence was sufficient to raise a genuine issue

of fact as to whether the employer retaliated against its

employees for engaging in protected activity.    See id. at 309.

     Similarly, Medina offered evidence that his work evaluations

changed dramatically after he began complaining about what he

believed to be age discrimination.    In June of 1993, Medina told

fellow employees that the promotion of two younger employees over

him constituted age discrimination.   Up to that point, Medina had

only one criticism in his personnel record in more than twenty

years of work with the company. In the following few months,

various officers of Ramsey Steel placed between eight and ten

uncomplimentary memos in his file, and, on November 22, 1993,

Doug Ramsey placed Medina on ninety days probation.

     The record does not clearly indicate when Doug Ramsey and

other Ramsey Steel officials learned of Medina’s age

discrimination complaints.   However, it is clear that Doug Ramsey

knew of Medina’s formal complaint to the TCHR as of January 5,

1994 because he sent the TCHR a response on that date.      After

January 5, 1994, Ramsey Steel officials continued to place


                                20
criticisms in Medina’s file.   Medina also offered evidence that

he attended a meeting in which Ismael Legarreta, Ramsey Steel’s

Assistant Vice-President and Medina’s supervisor, said “I don’t

care if you have been with the company five years or fifty years.

And I don’t care if you sue me or take me to court.        It’s going

to be hard for you to collect.”

     Ramsey Steel vigorously disputes this evidence and the

inferences Medina draws from it.       Nevertheless, there is a    “a

conflict in substantial evidence on the ultimate issue of

retaliation.” Sherrod, 132 F.3d at 1122. Medina has raised a

genuine issue of material fact as to whether Ramsey Steel

unlawfully retaliated against him.       Therefore, summary judgment

on Medina’s unlawful retaliation claim was inappropriate.

                                  IV.

     The district court granted summary judgment against Medina

on his claims against Doug Ramsey, one of his supervisors at the

time of the alleged discriminatory acts.       Medina urges this court

to hold Doug Ramsey individually liable for age discrimination.

We decline to do so.

     The Texas Labor Code authorizes suits to remedy age

discrimination against “employers.”       See TEX. LAB. CODE ANN. §§

21.002, 21.051(8).   However, supervisors and managers are not

considered employers under the Texas Labor Code and, therefore,

are not individually liable for age discrimination.        See


                                  21
Benavides v. Moore, 848 S.W.2d 190, 198(Tex. App.–Corpus 1992,

writ denied).   Similarly, the ADEA authorizes suits against

employers for age discrimination.      See 29 U.S.C. § 623(a).

Likewise, the ADEA “provides no basis for individual liability

for supervisory employees.”    Stults v. Conoco, Inc., 76 F.3d 651,

655(5th Cir. 1996).   Therefore, summary judgment on Medina’s

claims against Doug Ramsey was appropriate.

                                  V.

     The district court denied Ramsey Steel’s and Doug Ramsey’s

motion for attorney’s fees and costs.      We review this decision

for an abuse of discretion.    See EEOC v. Tarrant Dist., Inc., 750

F.2d 1249, 1251(5th Cir. 1984).    Ramsey Steel and Doug Ramsey

argue that they are entitled to attorney’s fees and costs because

Medina’s claims are frivolous and because he litigated his case

in bad faith.   Having found that at least some of Medina’s claims

are sufficient to survive summary judgment, it cannot be said

that his claims were frivolous or that he litigated in bad faith.

Therefore, we find no abuse of discretion in the district court’s

decision to deny an award of attorney’s fees and costs.

                              CONCLUSION

     The district court did not err by denying Medina’s motion to

remand to state court because his cause of action included a

claim for damages available only under federal law.      The district

court did not err by granting summary judgment in favor of Doug


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Ramsey because he is not an employer under the Texas Labor Code

or under the ADEA.   However, genuine issues of material fact

exist as to whether Ramsey Steel discriminated against Medina

because of his age and whether Ramsey Steel terminated him in

retaliation for engaging in protected activity.   Since Medina’s

claim was not frivolous or brought in bad faith, the district

court did not abuse its discretion by denying Ramsey Steel’s and

Doug Ramsey’s motion for attorney’s fees and costs.   Accordingly,

we AFFIRM IN PART, REVERSE IN PART, and REMAND for further

proceedings consistent with this opinion.




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