                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit                    September 13, 2004

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 04-10321
                               Summary Calendar



                               C. ROGER MAYES,

                                                      Plaintiff-Appellant,


                                     VERSUS


               KELLY SERVICE, INC.; ONSTAR CORPORATION,

                                                     Defendants-Appellees.




           Appeal from the United States District Court
     For the Northern District of Texas, Fort Worth Division


Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellant C. Roger Mayes (“Mayes”), a man born on December 21,

1940, brought suit in Texas state court against Appellees Kelly

Services,    Inc.    (“Kelly”)    and   Onstar    Corporation      (“Onstar”),

alleging    violations    of   the   Texas    Commission   on   Human     Rights

(“TCHR”) Act, TEX. LAB. CODE ANN. ch. 21 (Vernon 1996 & Supp. 2004),

and Title VII.      Defendants removed the cause of action on the basis



     *
      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this opinion should not be published and is not precedent except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.
of both diversity and federal question jurisdiction, and the

district court construed Mayes’s reference to Title VII in his

original complaint           as   a   claim       arising   instead    under     the   Age

Discrimination and Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”).1

       Mayes claimed he was employed by both Onstar and Kelly and

that he was originally employed in 1998 at the age of fifty-seven

years.        Onstar     objected,    claiming       Mayes    had    always     been   the

employee of Kelly, or its predecessors, throughout his relationship

with       Onstar   as   a   sales    manager.         At    the    inception    of    his

relationship        with     Kelly,    Mayes        entered    several     agreements,

including an agreement that Kelly was his employer.                      The contract

provided that while assigned to other entities on a temporary

basis, Mayes remained an employee of Kelly alone.                      It is by virtue

of this agreement that Mayes was employed by Kelly but provided

services to Onstar.          Also, Mayes agreed that upon termination of a

temporary assignment he should contact Kelly for another assignment

and that failure to do so would indicate that he voluntarily quit

or was not actively seeking work.

       In 2002, when Mayes was sixty-one years old, Kelly informed

Mayes that Onstar was dissatisfied with Mayes’s performance and

requested he be removed from the assignment.                       At that time, Mayes

could have, but did not, requested reassignment to a new position

with Kelly.


       1
        Mayes does not contest this construction.

                                              2
     After initial proceedings and adequate discovery, Kelly and

Onstar filed motions for summary judgment.         On February 11, 2004,

the district court granted defendants’ motions on the grounds that

(1) Onstar was not Mayes’s employer; (2) Mayes failed to present a

prima facie case of age discrimination; and (3) even assuming a

prima facie case was presented, defendants produced a legitimate,

nondiscriminatory     basis   for       removing     Mayes   from   work

responsibilities, and Mayes failed to present evidence that their

proffered reasons were pretext for unlawful discrimination.

     We review a district court’s grant of summary judgment de

novo.   Young v. Equifax Credit Info. Servs. Inc., 294 F.3d 631, 635

(5th Cir. 2002).    We have reviewed the briefs and record excerpts,

as well as relevant portions of the record.        We AFFIRM the district

court’s granting of summary judgment for the reasons articulated in

its memorandum opinion and order filed February 11, 2004.

AFFIRMED.




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