                   IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 98-20172
                            _____________________


DRUSILLA C. JOHNSON; ET AL.,

                                                                Plaintiffs,

DRUSILLA C. JOHNSON,

                                                      Plaintiff-Appellant,

                                      versus

EXXON COMPANY, USA,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-96-CV-1955)
_________________________________________________________________

                                June 21, 1999

Before REAVLEY, JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     In this case, the plaintiff, Drusilla Johnson, was released

from employment by Exxon as part of a reduction in force.          She sued

Exxon, and a district court granted summary judgment in Exxon’s

favor.       On appeal, the plaintiff argues that the district court

erred       in   granting   summary   judgment   on   her   Americans   with

Disabilities Act (“ADA”) and Age Discrimination in Employment Act

(“ADEA”) claims.       She also argues that the district court erred in

        *
      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this opinion should not be published and is not precedent except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.
denying her motion to compel the production of information she did

not obtain in discovery.             Because we find no merit to any of these

arguments, we affirm the district court.

                                             I

       On        March    14,   1994,     Drusilla     Johnson’s   employment   was

terminated by Exxon after the sale of its Credit Card Center made

necessary a reduction in force of some four hundred jobs.                       The

reduction, called a “Special Program of Severance Allowances”

(“SPOSA”), was accomplished by first offering a voluntary severance

package and then, when not enough workers volunteered to leave the

company, terminating additional employees. Employees were selected

for termination based solely on their job performance rankings for

1993 (based on a review of the employee’s performance in 1992).

Exxon applied a straight cut--all employees with a ranking in the

bottom ten percent1 were let go.                 According to Exxon, the average

age of employees in the Controller’s Department is 41 and the

average age of terminated employees was 42.

       Johnson was ranked in the bottom eight percent in her 1993

performance rankings. This low ranking was a result of an incident

that occurred in 1992.            In April of 1991, Johnson was transferred

from       the    Title    Section      (where   she   had   apparently   performed

reasonably well) to Owner Communications and Payables section where

she worked as a Debit Coordinator.                   Her job essentially involved


       1
     Exxon did not terminate employees with over 25 years service
to the company.



                                             2
collecting overpayments made by Exxon. In that job, she apparently

was not able to keep up with all of her accounts.                    Instead of

calling this to the attention of her supervisor, however, she

“fudged” the numbers so that it was not apparent that some of her

accounts were not up to date.         In 1992, she was transferred to a

new supervisor, Peggy Giammelle, who detected the inconsistencies

in Johnson’s reports.        Giammelle ultimately had to bring in six

people to deal with the backlog of work created by Johnson’s

failure to keep up with some $1.16 million worth of debits.              During

her 1993 evaluation, Giammelle explained to Johnson that her low

performance      rating   primarily   reflected      the   concern    over   her

attempted covering up of the backlog.         In addition, Giammelle also

explained that the evaluation also reflected dissatisfaction from

clients with whom Johnson worked. In 1993, Johnson was transferred

back to the Title Section.       However, because of the timing of the

SPOSA,    1994   evaluations   for    1993    work   performance      were   not

considered.

     At the time Johnson was laid off, she was a 46-year-old, white

female.   In addition, she had undergone a hysterectomy in December

of 1992 for the removal of what turned out to be a benign tumor.

Johnson alleges that she suffered hormonal imbalances throughout

1992 due to this complication.            Johnson further alleges that in

December of 1993, after she had been notified that she would likely

loose her job as a result of the Credit Card Center sale, Johnson

requested that Exxon reevaluate her performance review in the light




                                      3
of her health complications at the time. Exxon denies that Johnson

made such a request.

     Johnson sued Exxon for violations of the ADA, the ADEA, Title

VII (gender discrimination), and the Employee Retirement Income

Security   Act.   During   the   course   of   litigation,   a   dispute

apparently arose regarding Exxon’s production of statistics related

to the termination decision.     Johnson’s interrogatories contained

the following interrogatory:

     22. Please     identify     in   detail     the    names,
     positions/titles, and addresses of all individuals
     involved in the decision to layoff Plaintiff, and state
     what type of analysis was referred to by such individuals
     including reference to all statistical, numerical,
     computer generated and other source material relied upon
     by the decision to place the Plaintiff in the pool of
     employees to be terminated.

Johnson’s document requests included the following request:

     28. All data used for analysis or statistical comparison
     in print, computer tape, disks or other magnetic media
     used by Defendant to determine what employees would be
     laid off resulting from the sale of Defendant’s credit
     card operations to G.E. Capital including data showing
     breakdowns by age disabling condition(s), gender and
     performance.

Exxon denied that it had relied on or generated any statistics

related to the termination decision.

     After the close of discovery on July 1, 1997,      Exxon filed a

motion for summary judgment on August 1, 1997.        In that motion,

Exxon noted that the average age of the Controller’s Department was

41 and the average age of workers who were terminated from the

Controller’s Department was 42.    After a hearing in November 1997,

in which the district court ruled that it would grant summary



                                   4
judgment on three claims and was likely to grant summary judgment

on the fourth, Johnson moved for a motion to compel discovery.

Johnson’s motion was filed over five months after the close of

discovery and sought the statistics used by Exxon in their summary

judgment motion.

     On January 23, 1998, The district court entered a memorandum

and order granting summary judgment on all claims.   In that motion,

the district court denied Johnson’s motion to compel as untimely.

Johnson filed a timely notice of appeal with respect to the ADA and

ADEA claims.

                                 II

     The district court granted summary judgment to the defendants

on the ADA claims on four different grounds.     First the district

court concluded that because Johnson did not have a permanent

disability, she did not qualify as disabled.   Second, the district

court held that there was no evidence that Johnson was stigmatized

for apparently having cancer.   Third, the district court held that

her request for accommodation, that Exxon reassess a performance

evaluation, was not a request for a reasonable accommodation under

the ADA.   Finally, the court noted that Johnson only made a request

after discovering that her job may be in danger.

     We resolve this issue on the basis of the court’s first

holding.   The court relied on the following language in Burch v.

Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997):

     We have previously rejected attempts to transform
     temporary afflictions into qualifying disabilities. See



                                  5
     Rogers v. International Marine Terminals, Inc., 87 F.3d
     755, 759 (5th Cir. 1996); Rakestraw v. Carpenter Co.,
     898 F.Supp. 386, 390 (N.D.Miss. 1995); see also Soileau
     v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.
     1997); Sanders v. Arneson Products, Inc., 91 F.3d 1351,
     1354 (9th Cir. 1996), cert. denied, --- U.S. ----, 117
     S.Ct. 1247, 137 L.Ed.2d 329 (1997); 29 C.F.R.
     § 1630.2(j), App. (1996) ("[T]emporary, non-chronic
     impairments of short duration, with little or no long
     term   or    permanent    impact,   are   usually   not
     disabilities.").

The district court noted that Johnson provided no evidence that her

medical problem was a permanent disability.

     On appeal, Johnson makes no attempt to address this case, or

explain why her condition is a permanent disability.    Apart from

noting that there is no such requirement in the specific language

of the ADA and stating that similar conditions have been qualified

as disabilities by other courts (but not the Fifth Circuit), she

makes no attempt to address this serious flaw in her case.   After

a careful consideration of the arguments raised in the briefs and

on appeal and a review of the record, we conclude that the district

court did not err in granting summary judgment on this basis.

                               III

     In granting summary judgment on the ADEA claim, the district

court noted that this case involved a reduction in force, not    a

case where an employee was replaced by another employee.   In order

to prevail on an ADEA claim based on a reduction in force, Johnson

had to show:

     (1) that [s]he is within the protected age group; (2)
     that [s]he has been adversely affected by the employer's
     decision; (3) that [s]he was qualified to assume another
     position at the time of the discharge; and (4) “evidence,



                                6
     circumstantial or direct, from which a fact finder might
     reasonably conclude that the employer intended to
     discriminate in reaching the decision at issue.”

Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 41 (5th Cir.

1996) (quoting Amburgey v. Corhart Refractories Corp., Inc., 936

F.2d 805, 812 (5th Cir. 1991)).         Under the McDonnell Douglas

burden-shifting framework, Johnson would either have to show direct

discrimination based on age (which she does not) or she would have

to make out a prima facie case in which Exxon could then rebut by

articulating   a   legitimate,   non-discriminatory   reason   for   its

actions.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir.

1999).

     The district court held that Johnson failed to make out a

prima facie case of age discrimination. The district court further

held that, even if Johnson had not failed, Exxon asserted a

legitimate non-discriminatory reason for releasing her.        In this

case, Exxon based its decision regarding which employees to release

entirely on the 1993 performance evaluation.    For that year, there

was a very good reason why Johnson’s evaluation was one of the

lowest-- she had failed to perform her work and then attempted to

cover up her deficiency.

     On appeal, Johnson does not address Exxon’s legitimate reason

for terminating her.    Instead, she focuses on her prima facie case

of discrimination.     She argues that she introduced testimony that

Exxon targeted older employees for termination in its evaluation




                                   7
and ranking system.        Regardless of whether Johnson has made out a

prima   facie     case,   she   has    completely    failed   to   address    the

legitimate reason advanced by Exxon for terminating her.               Because

she cannot rebut that reason, her ADEA claim fails.

                                        IV

     Johnson finally argues that the district court erred in

denying her motion to compel discovery.             The district court based

its decision on Johnson’s undue delay in filing a motion to compel.

We review this determination for abuse of discretion.              In the light

of the interrogatories and discovery requests, it is apparent that

Johnson failed to ask for the information she sought. Her requests

asked for statistics prepared in relation to the decision to

terminate.      She did not ask for statistics regarding the ages of

employees    in    the    department    and   of    the   employees   who    were

terminated.       If she had, she could easily have calculated the

statistics introduced by Exxon herself--she would simply have had

to average the age of the employees who were released and the age

of the employees in the Controller’s Department. We therefore hold

that the district court did not abuse its discretion in denying

Johnson’s request.

                                         V

     We consider the district court’s opinion to be extremely

thorough and well considered in this case.                 Our opinion today

offers little more than an affirmance of that opinion.                 Johnson

failed to make out the necessary elements of either an ADA or an




                                         8
ADEA claim. In addition, the district court quite correctly denied

Johnson’s motion to compel.   Her motion was filed after the close

of discovery and the information she sought was not information she

requested during discovery. We therefore AFFIRM the rulings of the

district court.

                                                  A F F I R M E D.




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