               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
               ______________________________________


                            No. 98-41219
                          Summary Calendar
               ______________________________________


RUSSELL SAMFORD; TERRY W. HOWARD;
WILLARD D. RAMEY,

                                                         Plaintiffs-Appellants,

                                    versus

THE STOLLE CORPORATION, d/b/a
ALCOA BUILDING PRODUCTS,

                                              Defendant-Appellee.
           _____________________________________________

            Appeal from the United States District Court
                  for the Eastern District of Texas
              (4:96-CV-164, 4:96-CV-346 & 4:96-CV-375)
           _____________________________________________

                                May 17, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants         Russell    Samford,    Terry    Howard,   and

Willard   Ramey    appeal    the   district    court’s     grant   of   summary

judgment, dismissing their retaliatory discharge claims against

Defendant-Appellant The Stolle Corporation, d/b/a Alcoa Building

Products (“Stolle”).        Concluding that Samford and Howard have not

presented sufficient evidence to create a genuine issue of material

fact whether      Stolle’s    proffered   non-discriminatory        reason   for

discharging them was pretextual, we affirm the district court’s

    *
       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this opinion should not be published and is not precedent except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.
grant of summary judgment dismissing their claims.                    We conclude,

however, that Ramey has presented sufficient evidence to challenge

Stolle’s    proffered     explanation,       creating     a    genuine    issue    of

material fact, and thus reverse and remand with regard to his claim

against Stolle.

I.   Facts and Proceedings

     Samford, Howard, and Ramey, who prior to their discharge each

worked in the Maintenance Department of Stolle’s Denison, Texas

plant,     claim   that   they   were       fired    as   a    result    of    their

participation in “protected activities” in violation of § 215 of

the Fair Labor Standards Act (“FLSA”) and § 21.055 of the Texas

Labor Code.     Specifically, they point to (1) a confidential letter

they and four other Stolle employees sent to Stolle’s parent

company, ALCOA, in December 1993, asking the company to investigate

a “series of situations” involving “sensitivity, inconsistences

[sic],     confidentiality,      undermining          supervisory        integrity,

partiality, intimidation, [and] attempted unfair trade practices”;

and (2) their participation in a June 1994 Department of Labor

(“DOL”) investigation of an overtime compensation complaint made by

another employee, Myron Grubowski, at the Denison plant.

     Stolle discharged the Plaintiffs in November 1994.                       Stolle

asserts     that   (1)    it   fired    the       Plaintiffs     as   part    of    a

reorganization of the maintenance department designed to improve

the technological and engineering skills of the department; (2) the

process    of   reorganization    began      in     August    1993,   when    Stolle

determined that it would hire a degreed engineer to manage the


                                        2
department, before the Plaintiffs were engaged in any allegedly

protected conduct; and (3) it did not replace the Plaintiffs, who

were all Maintenance Supervisors, but rather created a new Plant

Engineer position, which it filled with an engineer with a college

degree,    eliminating   all    Maintenance   Supervisor   positions

permanently.

II.   Analysis

      A.   Standard of Review

      We review de novo the district court’s grant of summary

judgment, applying the same standard as the district court.2

      B.   Applicable Law

      Retaliatory discharge claims under the FLSA and the Texas

Labor Code are subject to the familiar burden-shifting framework of

McDonnell Douglass v. Green.3     Under this framework, a plaintiff

establishes his prima facie case if he offers competent summary

judgment evidence that: (1) he engaged in statutorily protected

activity; (2) he suffered an adverse action by his employer; and

(3) there is a causal link between the protected activity and the




      2
     Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d
557, 558-59 (5th Cir. 1997).
      3
     411 U.S. 792, 802-04 (1973). See Brock v. Casey Truck Sales,
Inc., 839 F.2d 872, 876 (2d Cir. 1988) (applying McDonnell Douglas
framework to FLSA retaliation claim); Brock v. Richardson, 812 F.2d
121, 123 n. 1 (3d Cir. 1987) (same); James v. Medical Control,
Inc., 29 F. Supp. 2d 749, 752 (N.D. Tex. 1998) (same); Adams v.
Valley Fed. Credit Union, 848 S.W.2d 182, 186 (Tex. App. 1992)
(applying McDonnell Douglas framework to claim under Texas Labor
Code).

                                  3
adverse action.4         Once the plaintiff has established his prima

facie case, the burden of production shifts to the defendant to

articulate a legitimate, nondiscriminatory reason explaining the

adverse employment decision.5 If the defendant introduces evidence

which, if true, would permit the conclusion that the adverse

employment action was nondiscriminatory, the focus shifts to the

ultimate question of whether the defendant unlawfully retaliated

against the plaintiff, that is, whether the protected conduct was

a “but for” cause of the adverse employment decision.6

     The district court did not address whether the Plaintiffs had

satisfied their initial burden of establishing their prima facie

case, but rather held that they had failed to offer sufficient

evidence to raise a genuine issue of material fact regarding

Stolle’s proffered nondiscriminatory reason for discharging them.7

We agree with regard to Samford and Howard’s claims; however, we

conclude that Ramey has raised such a genuine issue of material

fact.

     C.         Merits

     Stolle asserts that it fired the Plaintiffs as part of its

         4
       See Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th
Cir.), cert. denied, 118 S. Ct. 336 (1997) (Title VII case).
         5
             Long v. Eastfield College, 88 F.3d 300, 304-05 (5th Cir.
1996).
     6
        Id.
    7
     See Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir.
1995) (affirming district court’s holding that plaintiff had failed
to provide sufficient evidence that defendant’s articulated
nondiscriminatory reason for firing plaintiff was pretext for sex
or age discrimination).

                                     4
restructuring of its maintenance department.                 Specifically, Stolle

contends     that     it     eliminated        Samford,     Howard,    and   Ramey’s

Maintenance Supervisor positions and replaced them with a single

Plant Engineer position, which it filled with an engineer with a

college degree.

     Plaintiffs       do     not   dispute      that    Stolle      reorganized   its

maintenance department or that such a reorganization constitutes a

legitimate, nondiscriminatory reason for discharging an employee.8

Rather, they        assert    that   the   timing      of   their    discharge,   the

favorable performance reviews they had received, and the alleged

termination of other employees who engaged in the putatively

protected activities, raise a genuine issue of material fact

whether Stolle’s nondiscriminatory reason for dismissing them was

pretextual.9    With one exception, which relates to Ramey only and

which we address below, none of the evidence offered by the

Plaintiffs supports the inference that Stolle’s proffered reason

for discharging them was a mere pretext.10

    8
     See EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th
Cir. 1996) (“In the context of a reduction in force, which is
itself a legitimate nondiscriminatory reason for discharge . . .
.”)
         9
      In addition, Samford argues that he was not a Maintenance
Supervisor, but a “Tool and Die Engineer,” and thus Stolle’s
proffered nondiscriminatory reason does not apply to him. As the
district court found, “the summary judgment evidence shows that,
despite semantics, Samford was treated as and considered himself to
be the maintenance supervisor for the tool and die operations at
the plant.”
        10
      Seizing on a single sentence in the district court’s order
granting Stolle’s summary judgment motion, the Plaintiffs
additionally argue that the district court imposed the incorrect
burden of proof on the Plaintiffs, requiring them to “prove” their

                                           5
     First, the Plaintiffs argue that their discharge followed the

protected activity in which they engaged so closely in time as to

justify an inference of retaliatory motive. Although the timing of

a plaintiff’s discharge is relevant to our inquiry, that factor

alone in the absence of other relevant evidence of retaliatory

motive is not sufficient to raise a genuine issue of material fact

in this case.11   Stolle fired the Plaintiffs 11 months after they

sent the confidential letter to ALCOA’s management and 5 months

after they were interviewed in connection with Grubowski’s overtime

compensation complaint.   The evidence, however, is undisputed that

Stolle set in motion the wheels of its effort to reorganize the

maintenance department in August 1993, several months before the

Plaintiffs engaged in any allegedly protected conduct.     Without

more, the timing of their discharge does not cast doubt on Stolle’s

proffered reason for terminating the Plaintiffs’ employment.

     Second, the Plaintiffs argue that they were well qualified for

their positions, as evidenced by the facts that they consistently

received favorable performance reviews and that Stolle has failed

to point to any specific deficiencies in the Plaintiffs’ technical



case prior to trial. As the district court clearly indicated its
order denying the Plaintiffs’ motion to reconsider, the court
applied the proper standard, requiring the Plaintiffs to show that
there is a “conflict in substantial evidence” sufficient to create
a genuine issue of material fact.     See Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc).
    11
      See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th
Cir. 1995) (“The timing of the adverse employment action can be
significant, although not necessarily determinative, factor.”);
Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992)
(same).

                                 6
or engineering abilities.            Even setting aside the Plaintiffs’

questionable characterization of the evidence, they do not dispute

that Stolle began its restructuring effort before they engaged in

any protected activity or that Stolle never hired individual

replacements for dismissed Maintenance Supervisors.                         Neither do

they contend that their technological and engineering capabilities

were on par with the Plant Engineer Stolle did hire.                  In short, the

Plaintiffs’ assertion that they were qualified to do the jobs that

they had been doing prior to the reorganization simply does not

rebut     Stolle’s     explanation     that       it     was    restructuring          the

maintenance department to emphasize skills the Plaintiffs do not

possess.12

     Third,    the     Plaintiffs    assert       that    the    facts   that        Myron

Grubowski     was     fired   the    day       after     he    met   with      the     DOL

representative who was investigating his overtime compensation

complaint    and     that   “each   employee      who    complained      and    gave a

statement to the United States Department of Labor was quickly

discharged” support an inference that the Plaintiffs were fired in

retaliation for their participation in the DOL investigation.                           In

addition, the Plaintiffs point to an August 1994 hand-written

memorandum from Bobby Thomas, Plaintiffs’ immediate supervisor, to

Gale Powell, Stolle’s Human Resources Manager, stating that he

(Thomas) had learned that Ramey had told another employee that, if

     12
      Cf. Texas Instruments, 100 F.3d at 1181 (“In the context of
a   reduction   in   force,  which   is   itself    a  legitimate
nondiscriminatory reason for discharge, the fact that an employee
is qualified for his job is less relevant —— some employees may
have to be let go despite competent performance.”).

                                           7
Grubowski sued the company, he (Ramey) would testify on Grubowski’s

behalf.

     Plaintiffs’ reliance on Mr. Grubowski’s discharge in and of

itself is misplaced.    Grubowski’s claim is not before us and,

without more, the fact that Stolle impermissibly fired another

employee, which we will assume to be true for purposes of summary

judgment,13 does not bear on the Plaintiffs claims.   The “more” to

which the Plaintiffs point, without citation to the record, is

their assertion that all of the employees who met with the DOL

regarding Grubowski’s claim were fired.   The Plaintiffs relatedly

argue that all but two of the Stolle employees who signed the

December 1993 letter to ALCOA were fired.

     The record does not support the Plaintiffs’ assertions.    To

the contrary, as the district judge noted, at least one employee,

Ray Hobbs, who met with the DOL representative was not terminated.

Moreover, consistent with Stolle’s proffered explanation, Hobbs is

an electronics technician in the Maintenance Department, not a

Maintenance Supervisor and thus not similarly situated.   Likewise,

the two employees who signed the letter to ALCOA but were not

terminated are not Maintenance Supervisors.    The Plaintiffs, in

fact, provide no evidence that any employee who met with the DOL

representative or signed the December 1993 letter and who was not

a Maintenance Supervisor was fired. Indeed, the only evidence they

offer that Stolle might have been aware that any of the Plaintiffs

     13
       The DOL representative who investigated Grubowski’s claim
concluded that “his termination was effected by his contact with
the Department of Labor.”

                                8
met with the DOL representative was the observation that the DOL

representative interviewed Samford at the Denison plant.14                  In sum,

the   Plaintiffs’        unsupported       allegations     regarding     those   who

participated       in    DOL’s    investigation       of   Grubowski’s     overtime

compensation complaint simply do not buttress their claim that they

were fired in retaliation for their participation in the DOL

investigation.

      The memorandum from Thomas to Powell, however, is another

matter.     Thomas was Ramey’s direct supervisor.              According to his

own affidavit, he was the person who recommended that Stolle

eliminate the Maintenance Supervisor position in favor of a Project

Engineer.       Moreover, he made this recommendation in “approximately

August 1994,” the same month in which he wrote to the Human

Resources Manager that Ramey had stated that he would testify

against Stolle if Grubowski sued the company.                    In short, this

letter     is   the     one   piece   of   evidence   that   closely     links   the

termination of one of the Plaintiffs and his allegedly protected

activity.       It is sufficient to raise a genuine issue of material

fact whether Stolle fired Ramey because he had engaged in allegedly

protected activities.            Accordingly, Ramey’s claim against Stolle

survives summary judgment.

IV.   Conclusion

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

grant of summary judgment with regard to Samford and Howard’s


      14
      The DOL representative interviewed Howard and Ramey at their
homes by telephone.

                                            9
claims; and reverse and remand for proceedings consistent with this

opinion with regard to Ramey’s claim.

AFFIRMED in part; REVERSED and REMANDED in part.




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