                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                              No. 95.50923

                             Summary Calendar
                          _____________________


     JESSE RODRIGUEZ, JR.,

                                  Plaintiff-Appellant,

             v.

     MRS. BAIRD’S BAKERY, INC.,

                                  Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                           (SA-94-CV-900)
_________________________________________________________________
                           March 25, 1997
Before KING, GARWOOD, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jesse Rodriguez, Jr. appeals the district court’s granting

of summary judgment in favor of Mrs. Baird’s Bakery, Inc.

Finding no error, we affirm.

                            I.     BACKGROUND

         On March 12, 1994, a supervisor at Mrs. Baird’s Bakery,

Inc. (hereinafter “Mrs. Baird’s”) discharged Jesse Rodriguez from

his employment with the corporation.     At this point, Rodriguez

was fifty-five years old and had worked for Mrs. Baird’s for

     *
      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this opinion should not be published and is not precedent except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.
sixteen years.   Rodriguez worked for Mrs. Baird’s in Del Rio,

Texas, as a route salesman--a person who delivers the employer’s

products to customers’ stores along the salesman’s route.

Rodriguez’s route salesman duties included the inspection of Mrs.

Baird’s products at customers’ stores in order to guarantee that

only fresh products were available for sale.

     On the date of his dismissal, Rodriguez’s immediate

supervisor accompanied him on his route and noticed out-of-date

produce on the shelves of the stores for which Rodriguez was

responsible.   After the supervisor conferred by telephone with

his superior, the decision was made to terminate Rodriguez’s

employment once his route had been completed.

     Shortly thereafter, Rodriguez filed suit against Mrs.

Baird’s in the U.S. District Court for the Western District of

Texas.   Rodriguez alleged that he had been discharged in

violation of the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 621 et seq. and the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., and that he had been denied

retirement benefits in violation of the Employee Retirement

Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.1     The

district court granted Mrs. Baird’s motion for summary judgment.

Thereafter, Rodriguez sought review by this court.




     1
      Rodriguez also raised a Texas state law claim of workers’
compensation retaliation under TEX. LAB. CODE § 451.001, as well
as a cause of action for negligent supervision. Rodriguez does
not pursue these claims in the appeal to this court.

                                 2
                    II.          STANDARD OF REVIEW

     We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance.   See Texas Medical Ass’n v. Aetna Life Ins. Co., 80

F.3d 153, 156 (5th Cir. 1996).       The entry of summary judgment is

mandated “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.”   FED. R. CIV. P. 56(c).

     “Under Rule 56(c), the party moving for summary judgment

bears the initial burden of ‘informing the district court of the

basis for its motion and identifying the portions of the record

that it believes demonstrate the absence of a genuine issue of

material fact.’”   Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th

Cir. 1994), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).   If the moving party meets its burden, the burden shifts

to the non-moving party to establish the existence of a genuine

issue for trial.    Norman v. Apache Corp. 19 F.3d at 1023, citing

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87

(1986).

                          III.       Discussion

     Although the requirements for Rodriguez’s causes of action

are similar, and much of the evidence on each coincides, we will

review the district court’s action on them individually.      As a

prelude, we note that “testimony by an employee regarding his


                                     3
subjective belief that his discharge was the result of []

discrimination is insufficient to make an issue for the jury in

the face of proof showing an adequate, nondiscriminatory reason

for his discharge.”   Portis v. First Nat’l Bank of New Albany,

MS., 34 F.3d 325, 329 (5th Cir. 1994).

A.   The ADEA Claim

     Rodriguez attempts to prove age discrimination by inference

from the circumstantial evidence.    We use the McDonnell Douglas

framework to analyze claims of discrimination based upon

circumstantial or inferential evidence.    See Woodhouse v.

Magnolia Hosp., 92 F.3d 248, 252 (5th Cir. 1996).2

     McDonnell Douglas sets out a burden-shifting analysis for

proof of discrimination by inference.     McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-804 (1973).    First, the plaintiff must

demonstrate a prima facie case of discrimination.     Id. at 802.

“The burden of production then shifts to the defendant to proffer

a legitimate, non-discriminatory reason for the challenged

employment action.”   Nichols v. Loral Vought Sys. Corp., 81 F.3d

38, 41 (5th Cir. 1996), citing Rhodes v. Guiberson Oil Tools, 75

F.3d 989, 992 (5th Cir. 1996).   “Next, the plaintiff is given the

opportunity to demonstrate that the defendant’s articulated

rationale is merely a pretext for discrimination.”     Id.    “If [the

plaintiff] can raise a genuine issue of material fact as to

whether he has established pretext, that will suffice to avoid

     2
      McDonnell Douglas was a Title VII case. Nevertheless, we
have held the framework applicable to ADEA cases. Woodhouse v.
Magnolia Hosp., 92 F.3d at 252 n.3.

                                 4
summary judgment.”   Id.   “[A] plaintiff can avoid summary

judgment . . . if the evidence taken as a whole (1) creates a

fact issue as to whether each of the employer’s stated reasons

was what actually motivated the employer and (2) creates a

reasonable inference that age was a determinative factor in the

actions of which plaintiff complains.”     Rhodes v. Guiberson Oil

Tools, 75 F.3d 989, 994 (5th Cir. 1996).

     Assuming arguendo that Rodriguez has established a prima

facie case, he, nevertheless, fails to show that Mrs. Baird’s

reason for his discharge is only pretextual.    Mrs. Baird’s

offered an affidavit of the supervisor who observed and performed

the termination of Rodriguez and an accompanying exhibit, both of

which document the “out-of-date produce” reason for Rodriguez’s

termination.   Furthermore, Mrs. Baird’s proffered evidence to

show that a former younger employee who had committed the same

violation was likewise terminated.

     Rodriguez claims that his supervisor engaged in disparate

treatment by following him on his route because the supervisor

had not followed other route salesmen on their routes.    Rodriguez

fails to present any evidence, however, beyond his own bare

assertion that this is so, or to establish how he gained

knowledge of the disparity.   His supervisor, on the other hand,

attests that it is his practice to accompany route salesmen on

their routes from time-to-time.

     Except for Rodriguez’s subjective assertions that he was

fired because he was an “aging employee,” he offers no evidence


                                  5
to show that Mrs. Baird’s proffered reason is false or that

factual circumstances indicate that age discrimination likely

motivated its decision.

B.   The ADA Claim

     The ADA provides that “[n]o covered entity shall

discriminate against a qualified individual with a disability

because of the disability.”   42 U.S.C. § 12112(a).   Rodriguez

claims that his diabetes and the resultant impairments caused by

his condition were the reasons for his termination.    As in his

ADEA claim, Rodriguez again tries to establish discrimination by

inference.

     A plaintiff may establish an ADA claim by either direct

evidence or indirect, or inferential, evidence of discrimination.

See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.

1995).   We use the McDonnell Douglas burden-shifting approach for

ADA claims where the plaintiff attempts to prove discrimination

through inferential evidence.   Id.

     Rodriguez fails to present a genuine issue of material fact

as to Mrs. Baird’s legitimate, non-discriminatory reasons for the

termination.   Rodriguez does not offer summary judgment evidence

showing that the supervisor responsible for his termination knew

about his diabetes.   Rodriguez claims that he had informed two

other Mrs. Baird’s individuals about his condition and contends

that their knowledge should be imputed on the theory of

respondeat superior to the supervisor responsible for his

termination.   While respondeat superior is a theory used in ADA


                                 6
cases to impute actions of an employee-agent to the employer, it

is not proper to equate this with the imputing of knowledge

between agents of an employer.   Cf. Nichols v. Loral Vought Sys.

Corp., 81 F.3d at 41-42 (upholding summary judgment in an ADEA

claim because an immediate supervisor’s allegedly discriminatory

statements as to an employee’s age could not be imputed to the

relevant decision maker in the employee’s termination).

     When assessing Rodriguez’s claim, we are concerned with the

knowledge of the supervisor who was responsible for his

termination.   See id. (noting that an ADEA claim must be assessed

from the viewpoint of the relevant decision maker); see also

Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th

Cir. 1995) (noting that “[i]f it does not know of the disability,

the employer is firing the employee ‘because of’ some other

reason”).   Rodriguez’s bare assertion that the relevant

supervisor knew about his diabetes and resulting foot problem is

insufficient to make out a fact issue on the supervisor’s

knowledge of his disability.   Rodriguez fails to point to any

place in the record in which it can be inferred that the relevant

supervisor was aware of his disability.   Therefore Rodriguez

fails to present a fact issue as to whether each of the

employer’s stated reasons was what actually motivated the

employer.   See Rhodes v. Guiberson, 75 F.3d at 994 (holding that

an employee must rebut each of the employer’s stated reasons for

employee’s discharge in an ADEA case).




                                 7
C.   Claim for Violation of ERISA

     ERISA § 5103 makes it unlawful for an employer, with

specific discriminatory intent, to interfere with an employee’s

rights to receive compensation from a benefit plan.     See Rogers

v. International Marine Terminals, Inc., 87 F.3d 755, 761 (5th

Cir. 1996).

     Rodriguez makes two arguments in an attempt to show Mrs.

Baird’s “specific discriminatory intent.”     First, Rodriguez

claims that Mrs. Baird’s intentional age and disability

discrimination are sufficient to meet this burden.     Since we have

determined that Mrs. Baird’s has offered a legitimate,

nondiscriminatory reason for Rodriguez’s termination, this

argument will not support his ERISA claim.

         Second, Rodriguez contends that his loss of benefits is

sufficient to show intentional interference with his rights.       We

have held, however, that the incidental loss of benefits due to

discharge is not sufficient to show the requisite intent for a §

510 claim.     See Clark v. Resistoflex Co., 854 F.2d 762, 771 (5th

Cir. 1988).

     Rodriguez’s failure to show Mrs. Baird’s specific

discriminatory intent to violate § 510 demonstrates that the

district court’s summary judgment was proper on this cause of

action.




     3
      ERISA § 510 is encoded at 29 U.S.C. § 1140.

                                   8
                      IV.     Conclusion

    For the foregoing reasons, we affirm the district court’s

judgment.




                               9
