                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                                                                May 12, 2006
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk
                        ))))))))))))))))))))))))))

                             No. 05-41085
                          (Summary Calendar)

                        ))))))))))))))))))))))))))

WALTER E. MARTIN,

                Plaintiff–Appellant,

     v.

BAYLAND INCORPORATED,

                Defendant–Appellee.


           Appeal from the United States District Court
          for the Southern District of Texas, Galveston
                          No. 3:04-CV-319



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Walter Martin sued Appellee Bayland Incorporated

(“Bayland”) alleging discrimination in violation of the Age

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

and the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. §

21.051 (Vernon 2006)(“TCHRA”).      Bayland moved for summary

judgment, which the district court granted on May 31, 2005.


     *
       Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.
Martin now appeals.

I. Background & Procedural History

     Martin was born in 1930 and, from 1982 through 2003, worked

at Bayland, a manufacturer of plastic products.    For

approximately eight years, he worked as an equipment operator;

after that, and until he was terminated, Martin worked as a

quality controller.    Over the course of his employment with

Bayland, Martin fell at least seven times.    Following a December,

2002 fall at the office, which ultimately landed Martin in the

hospital for hip surgery, Jim Moses, Bayland’s owner, approached

Martin to terminate his employment.    In January 2003, he told

Martin: “I think it’s time to hang it up and you – for you to

retire.”    Martin submitted a claim to the Equal Employment

Opportunity Commission, which issued a right to sue letter.     On

May 19, 2004, Martin sued in the U.S. District Court for the

Southern District of Texas, which granted Bayland summary

judgment.

II. Standard of Review

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

novo.    Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir.

2004).    Summary judgment is appropriate 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


                                  2
is entitled to judgment as a matter of law.”    FED. R. CIV. P.

56(C); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).   An issue as to a material fact is “genuine” if the

evidence would permit a reasonable jury to return a verdict for

the non-moving party.     Roberson v. Alltel Info. Servs., 373 F.3d

647, 651 (5th Cir. 2004)(citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).    The evidence must be construed in a

light most favorable to the non-moving party and doubts resolved

in its favor.     Id.

III. Discussion

     Martin argues that the district court’s dismissal of his

claim was in error because he presented sufficient direct or,

alternatively, circumstantial evidence of discriminatory animus.

     A. Direct Evidence

     Martin argues that Moses’ remark–“I think it’s time to hang

it up and you – for you to retire”–constitutes direct evidence of

discrimination.    Direct evidence is “evidence that, if believed,

proves the fact of discriminatory animus without inference or

presumption.”     Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,

897 (5th Cir. 2002).    Martin’s evidence cannot be considered

direct because it requires one to infer that he was fired because

of his age based on Moses’ comment that it was time for him to




                                   3
retire.1   There is a link between retirement and age, but it is

not a necessary one.   Martin presents no direct evidence.

     B. Circumstantial Evidence

     Martin does not present sufficient circumstantial evidence

of discriminatory animus to survive summary judgment.    ADEA

“[p]laintiffs producing only circumstantial evidence of

discriminatory animus . . . must negotiate the burden-shifting

analysis set forth in McDonnell Douglas Corp. v. Green.”

Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

In the McDonnell Douglas analysis, once a plaintiff makes out a

prima facie case of discrimination under Title VII, he or she is

entitled to a presumption of discrimination, which the defendant

may rebut by presenting a legitimate, nondiscriminatory reason

for its actions.   Shackelford v. Deloitte & Touche, LLP, 190 F.3d

398, 404 (5th Cir. 1999).   If the defendant succeeds in rebutting

the presumption, the plaintiff must establish that the

defendant’s proffered reason for its action is pretextual.      Id.

     In granting summary judgment, the district court concluded

that Martin failed to demonstrate that Bayland’s proffered

     1
       In Sandstad, we rejected as direct evidence comments
requiring less of an inferential leap to animus than that
required here. Stock analysts were quoted as complaining about
“too much grey hair” in company management and a supervisor told
the plaintiff that the Chief Executive Officer had decided to
“skip a generation” in selecting plaintiff’s replacement. 309
F.3d at 895. The Sandstad comments more directly implicate age
than the word “retire,” at issue here.

                                  4
legitimate, non-discriminatory reasons for firing him, economic

considerations and safety, were pretextual.      Martin argues that

safety is not validly considered, and that both reasons are

unworthy of credence and demonstrably false.

     There are two ways to avoid summary judgment in an ADEA case

such as this, following the defendant’s proffer of its

legitimate, non-discriminatory reason: “(1) the plaintiff may

offer evidence showing that the defendant’s proffered

nondiscriminatory reasons are false; or (2) the plaintiff may

offer evidence showing that his age was a motivating factor for

the defendant’s adverse employment decision.”       Machinchick, 398

F.3d at 351 (citing Rachid v. Jack in the Box, Inc., 376 F.3d

305, 312 (5th Cir. 2004)).

     Martin first dismisses Bayland’s safety rationale.         Based on

Moses’ affirmative reply in deposition that economic reasons were

the only ones for which Martin was terminated, Martin argues the

safety rationale is “attorney dicta,” mere speculation

unsupported by admissible evidence.      However, later in the same

deposition, Moses discusses Martin’s being a hazard to himself

and other co-workers.   Additionally, in its response to Martin’s

interrogatories, Bayland wrote that “Plaintiff’s position was

eliminated for economic reasons.       Additionally, the Plaintiff was

unable to perform his duties in a safe manner.”2      Rule 56

     2
       We find no merit to Martin’s argument that “perform[ing]
his duties in a safe manner” is a reason distinct from being a

                                   5
specifically identifies answers to interrogatories as a species

of evidence on which a court may rely in granting summary

judgment.   The district court did not err in considering safety

as one of Bayland’s legitimate, nondiscriminatory reasons.

     Martin attacks both the economic and safety rationales as

false and unworthy of credence.    He points to the fact that Moses

did not mention either when he informed Martin of his

termination, telling him instead that it was time to retire, as

evidence of the rationales’ falsity.      This omission does not

suggest that either rationale is false.      Then, turning from

imbuing Moses’ words with extra meaning to stripping them of any,

Martin argues, citing Reeves v. Sanderson Plumbing Products,

Inc., that the vacuity of the words is proof of an attempt to

cover up the real reason for the termination, discrimination.

530 U.S. 133 (2000).   Reeves is not helpful to Martin’s cause.

There, the Supreme Court held that a defendant’s proof that an

employer’s proffered legitimate, nondiscriminatory reason for an

adverse employment action was unworthy of credence could allow

for a finding of discrimination.       Id. at 147-48.   Here, Martin

provides only the reasons themselves as evidence of their lack of

credence; no independent facts support his theory.

     Martin also argues that pretext must be inferred because

Bayland’s legitimate, nondiscriminatory reasons conflict.



hazard to himself and to other employees.

                                   6
Selectively quoting statements by Moses and Bayland, he

identifies four reasons: (1) retirement, (2) safety, (3)

elimination of the position and (4) economic reasons.    The record

supports Bayland’s repeated claim that Martin was terminated

because of safety and economic concerns,3 and he fails to

establish how these reasons conflict.

     Martin contends the safety rationale is speculative, legally

insufficient and demonstrative of disparate treatment.    Given the

number of accidents Martin admitted to in his deposition, we find

no error in the district court’s characterization of a “pattern”

of accidents.   Martin argues that Dothard v. Rawlinson precludes

Bayland from justifying the termination using Martin’s safety.

433 U.S. 321 (1977).   We have never adopted this view of Dothard.

See e.g., Chiari v. City of League City, 920 F.2d 311, 316 (5th

Cir. 1991) (“[T]he holding of Dothard supports a conclusion that

the City can exclude Chiari from a job because of fears about his

safety.”) (emphasis in the original).   Martin’s attempt to

establish disparate treatment by demonstrating that another


     3
       Two of these “reasons” are not actually proffered by
Bayland. Forced retirement means nothing apart from the reasons
driving it. Martin attempts to assign independent meaning to
Moses’ comment that it was time to retire, imputing to it ageism.
This reading presupposes the discriminatory animus it is intended
to prove. Likewise, Martin appears to manufacture position
elimination as an independent reason proffered by Bayland for his
dismissal. The letter to the EEOC on which he relies does not
support his theory as it clearly identifies safety as a major
concern, mentioning that the position had been eliminated only in
passing.

                                 7
worker also fell on the job does not succeed because he does not

establish how that worker’s single fall demanded the same

treatment as the pattern of falls exhibited by Martin.   He does

not succeed in rebutting Bayland’s safety rationale.

     Martin also attacks Bayland’s economic rationale, denying

the company had an economic need to terminate him.   The only

evidence he proffers to this effect is Bayland’s timing in

terminating him and several notations on a company record of

staff reduction, which indicate certain employees retired and

were fired, rather than being laid off.   With respect to the

notations, while there is a lack of clarity from the record as to

why each listed individual left Bayland’s employment, it is not

disputed that staff rolls were reduced by 50%.   Martin’s timing

argument is that the company’s failure to fire him months before,

when economic problems became manifest and before things began to

improve, demonstrates that the economic justification is

pretextual.   Because they are not inconsistent with terminating

an employee for economic reasons, neither Bayland’s failure to

fire Martin earlier nor the fact its finances had begun to

improve suffice to establish that the economic rationale was

pretextual.

     Martin fails to rebut Bayland’s proffered legitimate,

nondiscriminatory reasons for his termination.   Pointing only to

Moses’ “it’s time to retire” remark and two other innocuous



                                 8
retirement references,4 Martin also fails to establish that age

was a motivating factor in his termination.   The word “retire,”

does not, by its very use, bear this kind weight.

IV. Conclusion

     For the reasons above, the judgment of the district court is

AFFIRMED.




     4
       In a company record, Martin was listed as having retired.
Additionally, a workers’ compensation insurance adjustor
testified that, in March 2003, after Martin’s December fall when
he was not working and was receiving compensation for his injury,
Moses told the adjuster Martin had retired. If anything, these
references imply Moses believed Martin had retired.

                                9
