               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 99-40584
                         _____________________

          W F GARRETT,

                                           Plaintiff-Appellant,

          v.

          THE STROH BREWING CO.,

                                           Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                       Docket No. 6:98-CV-314
_________________________________________________________________

                           December 27, 1999

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant W.F. Garrett appeals the district

court’s entry of summary judgment in favor of Defendant-Appellee

The Stroh Brewing Company.    For the reasons stated below we

AFFIRM.




                 FACTUAL AND PROCEDURAL BACKGROUND

     *
      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this opinion should not be published and is not precedent except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.
     Plaintiff-Appellant W.F. Garrett (“Garrett”) originally

filed this action against Defendant-Appellee The Stroh Brewing

Company (“Stroh”) on May 20, 1998.   An amended complaint was

filed on December 10, 1998.   Both complaints alleged that Stroh

had violated the Age Discrimination in Employment Act (“ADEA”)

and Title VII by unlawfully discriminating against Garrett

because of his age, race, and disability.1   Garrett also alleged

that Stroh had engaged in intentional and negligent infliction of

emotional distress, breach of contract, and various retaliatory

actions.

     Garrett was originally hired by Stroh in August 1976 to work

at the company’s Longview, Texas brewery.    Garrett is still

employed by Stroh and continues to work at the Longview plant.

Sometime in 1996, Garrett was injured at work.    Garrett was

released by his physician to return to work in September 1996.

Garrett returned to work in February 1997, but his physician

directed that he not engage in any work requiring pushing,

pulling, overhead lifting of objects over 20 pounds, standing

     1
        Garrett did not specifically plead that Stroh violated
the Americans with Disabilities Act (“ADA”). Rather, his
complaint alleged that Stroh, by discriminating against Garrett
because of his disability, violated “29 U.S.C. Section 621 et
seq.”, the Age Discrimination in Employment Act. Furthermore,
Garrett pleads a Title VII cause of action in his original, but
not amended, complaint. The only mention of Title VII in
Garrett’s amended complaint is in the jurisdictional statement.
Due to our disposition of this case, we need not decipher the
rather cryptic pleadings filed below. For the purposes of this
opinion, the court will assume that Garrett properly pled causes
of action under the ADA, ADEA, and Title VII.

                                 2
over 30 minutes, repeat lifting, bending or stooping.     Garrett

was able to return to work with these restrictions because Stroh

had installed a new packaging technology, known as “Lock Dot,”2

on Garrett’s bottle line.   The system allowed Garrett to perform

his job within the physical limitations imposed by his doctor.

In March and October 1997, Garrett’s physician modified the

physical restrictions on his activity to include no lifting or

hand stacking of shrink-wrapped packages, no repetitive pushing,

pulling, lifting, stooping, or bending, no overhead lifting of

over 50 pounds, and no standing over two hours.   These

restrictions did not affect Garrett’s ability to work on the

“Lock Dot” bottle line.   Garrett’s bottle line is the only bottle

line in the Longview brewery utilizing the “Lock Dot” technology.

It is undisputed that, because of Garrett’s physical limitations,

he is unable to work on a bottle line that does not utilize the

“Lock Dot” system.

     Due to periodic declines in demand and increased inventory,

Stroh is occasionally forced to stop production on the “Lock Dot”

bottle line.   This requires that workers on that line be

relocated within the brewery or temporarily laid-off.     Garrett

was laid-off twice, once on October 20, 1997 and again on January

21, 1998.   Garrett alleges that he was laid-off in violation of

     2
        The “Lock Dot” system is a method of securing cases of
beer for transport. It replaced the earlier “shrink-wrap” method
in which the cases of beer were secured by being wrapped in
plastic film.

                                 3
Stroh’s collective bargaining agreement and that, in laying him

off, Stroh discriminated against him because of his age, race,

and disability.   Garrett also alleges that because of his age,

race, and disability, he was not given overtime hours when

requested and, moreover, that Stroh’s refusal to give him

overtime violated the collective bargaining agreement.

     Each time Garrett was laid-off, he immediately filed

complaints with the Texas Commission on Human Rights and the

EEOC.   The EEOC subsequently dismissed his complaints and issued

right-to-sue letters on October 20, 1997 and February 20, 1998.

     The district court determined that Garrett’s claims arising

out of the October 20, 1997 lay-off were time-barred because he

had not filed suit within 90 days of receiving the right-to-sue

letter.   The court also granted summary judgment in favor of

Stroh on Garrett’s remaining claims because it found that Stroh

had come forward with legitimate, non-discriminatory reasons for

laying off Garrett and that Garrett had failed to present

evidence that Stroh’s reasons were mere pretext for unlawful




                                 4
discrimination.3      We agree with the reasoning of the district

court.



                                DISCUSSION

       This court reviews a grant of summary judgment de novo,

applying the same standards as the court below.      See Matagorda

County v. Law, 19 F.3d 215, 217 (5th Cir. 1994).      Summary

judgment is proper when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law.       See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317 (1986).      A dispute regarding a material fact is “genuine” if

the evidence is such that a reasonable jury could find in favor

of the nonmoving party.       See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).      If the moving party meets the initial

burden of establishing that there is no genuine issue, the burden

shifts to the nonmoving party to produce evidence of the

existence of a genuine issue for trial. See Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).      The

nonmovant cannot satisfy his summary judgment burden with


       3
        The district court also found that Garrett had failed to
create a genuine issue of fact as to his claims of retaliatory
actions, breach of contract, and intentional infliction of
emotional distress. The court noted that, under Texas law,
negligent infliction of emotional distress is not a cognizable
cause of action. On appeal, Garrett only argues that the
district court improperly granted summary judgment on his
discrimination claims. Therefore, we consider his remaining
claims below to be waived.

                                    5
conclusory allegations, unsubstantiated assertions, or mere

scintillas of evidence.    See id.



1. Garrett’s October 20, 1997 Complaint

     The district court correctly determined that Garrett’s

claims arising out of his October 20, 1997 lay-off were time-

barred.   The EEOC issued a right-to-sue letter the same day

Garrett filed his complaint.   The law requires, and the right-to-

sue letter clearly stated, that Garrett had 90 days to file suit

after the EEOC issued its letter.     See 42 U.S.C. § 2000e-5(f)(1);

Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996).

Garrett did not file suit until May 20, 1998, well after the 90-

day deadline.   Therefore, Garrett’s claims are time-barred.



2. Garrett’s January 21, 1998 Complaint

     Garrett’s January EEOC complaint alleged that he was

discriminated against because of his race, age, and disability.

In both his original and amended complaint in district court,

Garrett alleged that he was discriminated against because of his

race, age and disability, and that Stroh engaged in intentional

and negligent infliction of emotional distress, breach of

contract, and “a variety of actions retaliation [sic] in nature.”

This district court entered summary judgment in favor of Stroh on

all of Garrett’s claims.


                                  6
     In McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973), the Supreme Court articulated a burden-shifting analysis

to be used when analyzing claims of racial discrimination under

Title VII.   In addition to using this standard to analyze claims

of racial discrimination, we also use it when analyzing claims of

age discrimination under the ADEA and disablity discrimination

under the ADA.   See Daigle v. Liberty Life Ins. Co., 70 F.3d 394,

396 (5th Cir. 1995) (applying the McDonnell Douglas standard to

ADA claims); Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir.

1999) (applying the McDonnell Douglas standard to ADEA claims).

     Under McDonnell Douglas, once a claimant has made out a

prima facie case of discrimination, the burden shifts to the

defendant to set forth legitimate, non-discriminatory reasons for

its employment decisions.   See Daigle, 70 F.3d at 396.   This

burden is met if the defendant can set forth evidence that, “if

believed by the trier of fact would support a finding that

unlawful discrimination was not the cause of the employment

action.”   Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th

Cir. 1996) (en banc) (citing St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993)).   If Stroh produces such evidence, the

burden is shifted back to Garrett to present evidence showing

that Stroh’s stated reasons are mere pretext for otherwise

unlawful discrimination.    See Moore v. Eli Lilly & Co., 990 F.2d

812, 815 (5th Cir. 1993).   To withstand a motion for summary

judgment, Garrett must produce evidence creating a genuine issue

                                 7
of fact concerning pretext.    See id.   This proof must “consist of

more than a mere refutation of the employer’s legitimate

nondiscriminatory reason” but must offer “some proof” that

Stroh’s actions were motivated by Garrett’s age, disability, or

race.    Id. at 815-16 (citations omitted).

     We assume, for the purposes of this opinion, that Garrett

has made out prima face cases of racial, age, and disability

discrimination.    However, Stroh produced evidence showing that

periodic downturns in demand required that the bottle line

Garrett worked on be temporarily shut down.    Stroh also showed

that, given Garrett’s physical limitations, there were no

available positions in the plant that Garrett could work at while

the bottle line was shut down.4   These are legitimate, non-

discriminatory reasons for temporarily laying-off Garrett.

Garrett has produced absolutely no evidence that Stroh’s

proffered reasons for laying him off were mere pretext for

otherwise unlawful discrimination.    Garrett has failed to produce

any evidence that would create a genuine issue of fact concerning

Stroh’s motives in laying him off.    Therefore, the district court

correctly granted summary judgment in favor of Stroh.

     4
        While there may have been other jobs within the brewery
that Garrett could physically perform, these positions were
filled by other employees at the time of the lay-offs. Under the
ADA, an employer may reasonably accommodate a disabled employee
by reassignment to a different job. However, for reassignment to
be a reasonable accommodation the “position must...exist and be
vacant.” Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th
Cir. 1997).

                                  8
                           CONCLUSION

     For the above stated reasons, the judgment of the district

court is AFFIRMED.




                                9
