                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                        _________________

                                           No. 98-51181
                                         Summary Calendar
                                        _________________

               GUSTAVO PACHECO,

                                               Plaintiff-Appellant,

               versus

               WHITE CONSOLIDATED INDUSTRIES, INC., doing business as
               The Eureka Company,

                                               Defendant-Appellee.


                           Appeal from the United States District Court
                                for the Western District of Texas
                                       (EP-98-CV-27-DB)

                                            June 22, 1999

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

PER CURIAM:*

       Plaintiff-Appellant, Gustavo Pacheco (“Pacheco”), worked for White Consolidated Industries,

Inc. d/b/a The Eureka Company (“Eureka”). Eureka fired Pacheco for allegedly (1) failing to “swipe”

in and out on the time clock when he took a work break, and (2) falsifying his timekeeping records.
As a result of his discharge, Pacheco filed suit in federal court alleging that Eureka had violated the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

Eureka filed a motion for summary judgment. The district court granted this motion, and Pacheco

timely appealed.

       On appeal, Pacheco argues t hat the district court erred in granting Eureka’s motion for

summary judgment. According to Pacheco, sufficient evidence existed in the record for a rational



   *
       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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
fact-finder to conclude that Eureka’s asserted reason for firing Pacheco was pretextual, and that age

was the real reason for Pacheco’s discharge. Pacheco also contends that the district court

erroneously considered defective affidavits as competent summary judgment evidence.

       We review the district court’s grant of summary judgment de novo, applying the standards

set forth in FED. R. CIV. P. 56(c). See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).

Rule 56(c) requires entry of summary judgment against a party if that party has failed to make an

evidentiary showing sufficient to establish an essential element of its case. See id. In the context of

an ADEA claim, a plaintiff “can avoid summary judgment and judgment as a matter of law [only] 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 action of which plaintiff complains.” Rhodes v. Guiberson Oil Tools,

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

       Pacheco argues that Eureka’s asserted reason for firing him was pretextual. According, to

Pacheco, although he failed to “swipe” in and out on the time clock when he took a work break, and

although he did not properly record his time, it was not customary for workers to follow these

procedures. We simply note that Eureka’s Company Handbook and policies required Pacheco to

“swipe” in and out, and to keep accurate timekeeping records. The record contains no evidence that

anyone at Eureka authorized Pacheco to disregard company rules, or that Eureka treated Pacheco

differently from other employees under similar circumstances. Accordingly, the district court properly

found that Pacheco failed to provide evidence sufficient to establish that his violation of Eureka’s

timekeeping procedures was a pretext for his discharge.

       Pacheco also argues that age discrimination was the real reason for his discharge. He points

to certain age related comments made by his supervisor and other instances of conduct as evidence

that “Eureka was out to get rid of the older workers and replace them with younger ones.” We note

that stray remarks are insufficient to demonstrate age discrimination.          See EEOC v. Texas

Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996). Moreoveor, there is no evidence in the record


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that Pacheco’s supervisor had authority to fire Pacheco. There is also no evidence in the record

showing that Eureka relied on the supervisor in making its decision to discharge Pacheco. After

reviewing the record, we agree with the district court that Pacheco failed to provide evidence

sufficient to establish that age discrimination was the real reason for his discharge.

       Finally, Pacheco argues that the district court erroneously considered defective affidavits as

competent summary judgment evidence. We have examined the affidavits, and conclude that

Pacheco’s argument lacks merit.

       Accordingly, we AFFIRM.




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