     Case: 10-40120 Document: 00511289900 Page: 1 Date Filed: 11/10/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                          November 10, 2010
                                     No. 10-40120
                                                                             Lyle W. Cayce
                                   Summary Calendar
                                                                                  Clerk


JOHN REXSES,

                                                          Plaintiff - Appellant

v.

THE GOODYEAR TIRE & RUBBER COMPANY,

                                                          Defendant - Appellee




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 1:08-cv-272


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Following his termination, Plaintiff-Appellant John Rexses (“Rexses”) sued
Defendant-Appellee Goodyear Tire & Rubber Company (“Goodyear”) under the
Texas Commission on Human Rights Act for age discrimination. The magistrate
judge granted summary judgment to Goodyear; Rexses appeals. Because Rexses



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40120


has failed to establish a prima facie case of age discrimination, and because he
cannot otherwise establish that he was discharged due to his age, we AFFIRM.
                              I. BACKGROUND
      Rexses was terminated from his job at Goodyear in 2007, when he was
53 years old. The record reflects that Rexses was warned and/or reprimanded
over a number of disciplinary problems that arose in late 2005 after he was
passed over for a promotion. Following a lengthy short-notice vacation, Rexses
told his supervisor, Bob Hebert (“Hebert”), that he intended to pursue other
employment opportunities outside his work division.             Following that
announcement, Hebert initiated a succession planning meeting with Rexses.
Around that time, Rexses started emailing various individuals outside his work
group in violation of Goodyear’s established chain of command. Following each
incident, Hebert reprimanded Rexses. On several occasions, Hebert offered
Rexses a transfer, which Rexses declined each time. Rexses has acknowledged
and apologized for his misconduct.
      However, the disciplinary problems continued. On February 2, 2007,
Rexses sent another inappropriate email to contacts outside his division. As a
result, on February 13, Hebert informed Rexses that Rexses would be
transferred to the Six Sigma division. Rexses immediately took vacation leave
and sent one last inappropriate email to a third party vendor. A 58-year-old vice
president at Goodyear finally emailed Rexses his termination: “John, I have had
enough of your B.S. I assume that you have another job! If not – you had better
consider finding one since you no longer have one in the Chemical Operations.”
      Following Rexses’s termination, his division did not hire a replacement,
but instead eliminated Rexses’s position and divided up his old responsibilities
among the existing staff. Many, but not all, of his former duties went to a co-
worker, Linda Joseph, who was age 48 at the time of Rexses’s termination.


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                                   No. 10-40120


                         II. STANDARD OF REVIEW
      “The court reviews the district court’s grant of summary judgment de novo,
applying the same standards as the district court.         Summary judgment is
warranted if ‘the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.’” Depree v. Saunders,
588 F.3d 282, 286 (5th Cir. 2009) (internal citations omitted).
                               III. DISCUSSION
      Rexses filed suit under the Texas statute prohibiting age discrimination
– the Texas Commission on Human Rights Act (“TCHRA”) – which states, in
pertinent part:
      An employer commits an unlawful employment practice if because
      of . . . age the employer: (1) . . . discharges an individual, or
      discriminates in any other manner against an individual in
      connection with compensation or the terms, conditions, or privileges
      of employment . . . .

Tex. Lab. Code Ann. § 21.051(1). Texas state courts interpret that provision in
line with analogous federal law.       See Wal-Mart Stores, Inc. v. Canchola,
121 S.W.3d 735, 739 (Tex. 2003) (“The Legislature intended to correlate state
law with federal law in employment discrimination cases when it enacted the
TCHRA.”). To prevail on his claim, Rexses first must establish a prima facie
case of age discrimination by showing that he (1) is a member of a protected
class, (2) was qualified for his position, (3) was subject to an adverse employment
action, and (4) was “either i) replaced by someone outside the protected class,
ii) replaced by someone younger, or iii) otherwise discharged because of . . . age.”
See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309, 312 (5th Cir. 2004). The
third alternative of the last element applies in circumstances where the plaintiff
is not replaced. See Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999).


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Both parties agree that Rexses has satisfied the first three components of his
prima facie case.
A.       Rexses Was Not “Replaced”
         The court correctly noted that a terminated employee has not been
“replaced” when his position is eliminated and his former duties are distributed
among other co-workers. See, e.g., Dulin v. Dover Elevator Co., 139 F.3d 898 (5th
Cir. 1998) (affirming district court’s holding that “when an employee’s position
has been eliminated and the job duties reassigned to existing employees, that
employee has not been replaced”).      That is what happened here.       Rexses
acknowledges that some of his duties were assigned to Linda Joseph, and others
were assigned to Hebert. See R. at 358 (Pl.’s Resp. to Def.’s Motion for Sum.
Jud.).    Moreover, the record shows that there were a number of material
differences between Joseph’s duties and those of Rexses. See R. at 256-57 (Decl.
of Bob Hebert). The district court correctly concluded that as a matter of law,
Rexses was not “replaced.”
         Because we agree that Rexses was not “replaced,” we do not consider
whether the five-year age gap between Joseph and Rexses made Joseph
“substantially younger” as a matter of law.
B.       Rexses Was Not Otherwise Discharged Because of Age
         Rexses cites several examples of what he perceives to be age
discrimination. First, he states that he was encouraged to engage in succession
planning. The record indicates that Goodyear officers discussed succession
planning with Rexses only after he had threatened to resign. An employer’s
inquiry into an employee’s age and retirement plans is not by itself evidence of
discriminatory intent. See Moore v. Eli Lilly & Co., 990 F.2d 812, 818 (5th Cir.
1993).




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                                 No. 10-40120


      Rexses next argues that he was subjected to trivial reprimands designed
to create a pretext under which his employer could fire him. The district court
rejected this conclusion because Rexses himself had acknowledged and
apologized for his wrongdoing that led to the reprimands. Finally, Rexses
argues that his employer engaged in a pattern of discriminatory conduct. The
district court properly rejected this claim because Rexses presented no evidence
apart from his own subjective beliefs.
      Goodyear met its burden of articulating a legitimate and neutral business
reason for terminating Rexses. Rexses was terminated for being insubordinate,
for flouting the company’s chain of command, and for sending inappropriate
emails to third parties. But there is no evidence that Rexses was fired by a
manager five years his senior due to age animus.
                             IV. CONCLUSION
      Rexses has failed to demonstrate a prima facie claim for age
discrimination. Goodyear was entitled to summary judgment. The judgment of
the trial court is AFFIRMED.




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