                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS               May 7, 2004

                          FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                       Clerk


                              No. 03-30938



ST. GEORGE CREAGHE,

          Plaintiff-Appellant,

                                  versus

ALBEMARLE CORPORATION,

          Defendant-Appellee.



          Appeal from the United States District Court
              for the Middle District of Louisiana
                       USDC No. 97-CV-803


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellant     St.   George   Creaghe   was   employed    by    Appellee

Albemarle Corporation and its predecessor-in-interest for nearly

thirty years before being dismissed in 1996.           Creaghe, who was

seventy-two at the time of his dismissal, alleged that his firing

was motivated by his age and filed suit in district court, raising

claims of discrimination under the Age Discrimination in Employment




     *
      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this opinion should not be published and is not precedent except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.
Act (“ADEA”).1   The district court concluded that Creaghe failed to

make out a prima facie case of discrimination and granted summary

judgment in favor of Albemarle Corporation.    Creaghe now appeals,

urging that he produced evidence that his discharge was motivated

by discriminatory animus and that the non-discriminatory reasons

offered by Albemarle are pretextual. For the following reasons, we

AFFIRM the district court’s decision.

                                   I

     Before addressing Creaghe’s ADEA claims, we must first assess

whether we have jurisdiction over this appeal.    Creaghe filed his

notice of appeal on September 29, 2003.     Albemarle contends that

this notice was untimely because the district court’s February 28,

2001, “Ruling on Motion for Summary Judgment” was a final judgment

that dismissed Creaghe’s suit.     In response, Creaghe argues that

the time for filing his appeal did not commence until the court

issued its “Judgment” on September 22, 2003.    He insists that the

February 2001 order was not a final judgment because it did not

comply with the requirements of Rule 58 of the Federal Rules of

Civil Procedure and because it did not, by its terms, dismiss the

case.

     Rule 58 requires that every judgment be (1) set forth on a

separate document and (2) entered on the district court’s civil

docket sheet.     “The sole purpose of Rule 58's separate-document

requirement was to clarify when the time for an appeal begins to


     1
         29 U.S.C. § 621 et seq.
run.”2    Thus, it must be “mechanically applied in order to avoid

new uncertainties as to the date on which a judgment is entered.”3

However, the separate document requirement “should be read, where

reasonably possible, to protect the right to appeal.”4             “It must be

remembered that the rule is designed to simplify and make certain

the matter of appealability. It is not designed as a trap for the

inexperienced. . . .”5       Thus, “[t]he rule should be interpreted to

prevent loss of the right of appeal, not to facilitate loss.”6

     Contrary    to    Creaghe’s    assertions,     the   district    court’s

February 2001 order appears to satisfy Rule 58's separate document

requirements.    To be “separate,” a judgment must be apart from any

document detailing either the court’s factual findings or the legal

basis of the court’s ruling; it may not be part of a memorandum or

opinion.7      The   order   in   this   case   fully   complies    with   this


     2
       Ludgood v. Apex Marine Corp. Ship Management, 311 F.3d 364,
368 (5th Cir. 2002) (citing Bankers Trust Co. v. Mallis, 435 U.S.
381 (1978)).
     3
         United States v. Indrelunas, 411 U.S. 216, 222 (1973).
     4
       Seiscom Delta, Inc. v. Two Westlake Park, 857 F.2d 279, 282
(5th Cir. 1988).
     5
         Seiscom, 857 F.2d at 283 (internal citations omitted).
     6
         Id.
     7
       See, e.g., Whitaker v. City of Houston, Tex., 963 F.2d 831,
833 (5th Cir. 1992) (“Until set forth on a separate document in
compliance with Rule 58, a statement tacked on at the end of an
opinion is not a judgment.”); see also Notes of Advisory Committee
on Rules, 1963 Amendment to FED. R. CIV. P. 58 (“The amended rule
eliminates these uncertainties by requiring that there be a
judgment set out on a separate document--distinct from any opinion
or memorandum--which provides the basis for the entry of
directive: it contained no discussion of the reasoning behind the

court’s decision, did not mention the facts of the case, did not

discuss the parties’ contentions, and cited no legal authority.

Indeed, it contained only four sentences, the final and most

prominent of which clearly stated that “IT IS ORDERED that the

Motion for Summary Judgment filed on behalf of defendant Albemarle

Corporation is hereby GRANTED, and this action will be dismissed.”

To be sure, the order did include some other basic information --

specifically, a brief introductory statement identifying the matter

before the court and a sentence defining the court’s jurisdiction.

However, the inclusion of this bare information alone does not

transform the order into a memorandum or opinion.8    Nor does the

fact that the order was called a “Ruling” rather than a “Judgment”

affect its status under Rule 58.9




judgment.”).
     8
       See, e.g., Nunez-Soto v. Alvarado, 956 F.2d 1 (1st Cir.
1992) (holding that an order was a “separate document” despite the
inclusion of a single explanatory sentence); Hamilton v. Nakai, 453
F.2d 152 (9th Cir. 1971) (holding that an order, designated as
such, was a “separate document” even though it included a one-
sentence explanation); cf. Taylor v. Sterrett, 527 F.2d 856 (5th
Cir. 1976) (holding that an order which included the court’s
opinions, findings, and conclusions was not a “separate document”);
Hughes v. Halifax County Sch. Bd., 823 F.2d 832 (4th Cir. 1987)
(finding that an order which included procedural history, arguments
presented, and reasons for disposition was not a separate
document).
     9
        Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,
528 (5th Cir. 1996) (“[T]he Supreme Court has held that no form of
words and no peculiar formal act is necessary to evince the
rendition of a judgment” (citations and internal quotations
omitted)).
       Nonetheless, there are weighty considerations discouraging us

from concluding that Creaghe’s appeal was untimely.         The February

Ruling, most notably, clearly stated that the action “will” be

dismissed; it did not, by its express terms, dismiss the suit.          The

order thus contemplated that a separate final judgment would later

issue, and Creaghe was justified in relying on the court’s clear

representation.10     Moreover, the district court itself stated that

it “never intended it’s [sic] Ruling of February 28, 2001 to be a

final decision.      The document is not, nor was it ever intended to

be, a judgment.”11

       Although the question is fairly close, we agree -- in light of

the ambiguous language in the district court’s February 2001 Ruling

and our generous approach to Rule 58 issues -- that the time for

filing the notice of appeal did not commence until September 22,

2003, the date on which the court issued its Judgment.                   We

interpret Rule 58's requirements to prevent the loss of an appeal

whenever reasonable.      Even if the February 2001 Ruling might have

been    sufficient   to   satisfy   Rule   58's   requirements,   “we   are

reluctant to hold that because such an order has been entered, the


       10
      We have stated in the past that “[t]he mere fact that a court
reenters a judgment or revises a judgment in an immaterial way does
not affect the time within which litigants must pursue an appeal.”
Offshore Prod. Contractors Ins. Co. v. Republic Underwriters, 910
F.2d 224, 229 (5th Cir. 1990). Given the wording of the February
order, the later September Judgment cannot fairly be considered a
simple “reentry” of judgment.
       11
      Creaghe v. Albemarle Corp., No. 97-cv-803 (M. D. La. Feb. 10,
2003) (order granting Creaghe an extension of time to file a notice
of appeal).
parties may not appeal from a later separate order which clearly

meets the requirements of Rule 58.”12   Accordingly, we acknowledge

our jurisdiction and proceed to consider the merits of Creaghe’s

appeal.

                                II

     The district court concluded that Creaghe failed to establish

a prima facie case of discrimination under the ADEA and granted

Albemarle’s motion for summary judgment.       We review a district

court’s grant of summary judgment de novo.13

     “In a reduction-in-force case, a plaintiff makes out a prima

facie case by showing (1) that he is within the protected age

group; (2) that he has been adversely affected by the employer's

decision; (3) that he was qualified to assume another position at

the time of the discharge; and (4) ‘evidence, circumstantial or

direct, from which a factfinder might reasonably conclude that the

employer intended to discriminate in reaching the decision at

issue.’”14 The district court found that Creaghe clearly satisfied

the first two elements of this test: he was seventy-two at the time

of his firing, and the firing was clearly an “adverse” employment

action. However, the court concluded that he failed to offer


     12
      Kline v. Department of Health & Human Services, 927 F.2d 522,
523 (10th Cir. 1991).
     13
      Rogers v. International Marine Terminals, 87 F.3d 755, 758
(5th Cir. 1996).
     14
      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)).
anything more than conclusory allegations to support the final two

prongs.   We agree.

      In an effort to demonstrate that he was qualified for another

position at Albemarle, Creaghe states in conclusory terms that he

was qualified for the position of Equipment Maintenance Planner at

Albemarle “and/or any other similar positions.” At the time of his

discharge, however, the Equipment Maintenance Planner position was

held by another employee.         When that employee abruptly retired two

months after Creaghe’s termination, Creaghe did not apply for the

position.   Moreover, beyond his conclusory assertion, Creaghe has

not   demonstrated    that   he    was   qualified   to    be   the    Equipment

Maintenance Planner, a position which clearly required computer

skills that Creaghe concedes he lacked.          Creaghe has identified no

alternative position for which he was qualified when he was fired.

He thus fails to satisfy the third prong of his prima facie test.

      Creaghe has also failed to satisfy the fourth prong because he

provides no evidence, direct or circumstantial, indicating a nexus

between his discharge and his age.          The only support he provides

for his argument is a reference to the Equipment Maintenance

Planner position. Creaghe argues that shortly after his firing,

Albemarle   placed    advertisements       for   this     position     in   local

newspapers and eventually hired a much younger man.                   He asserts

that this position was actually the same as his former position,

and that Albemarle’s decision to hire a younger man to fulfill the

role is evidence of discriminatory intent.
       Creaghe’s argument is unpersuasive.            Creaghe offers no proof

that the advertised Equipment Maintenance Planner position was

actually his former position, and the summary judgment record

clearly indicates otherwise.           For example, both positions were in

place at Albemarle at the same time, belying any suggestion that

Albemarle added the Equipment Maintenance Planner position to

replace     Creaghe’s     position.      Moreover,     Equipment       Maintenance

Planner     required    job   skills   that     Creaghe    admittedly     did    not

possess, including specialized computer training.                   The position

also    included    job    responsibilities       beyond    those      covered    by

Creaghe’s former position.         Creaghe provides nothing more than a

conclusory allegation to support his claim that the two positions

were the same, but such allegations are insufficient in response to

a motion for summary judgment.15            Creaghe fails to offer any other

evidence suggesting a nexus between his termination and his age.

Accordingly, Creaghe failed to satisfy the fourth prong of his

prima facie case.

       Even if we were to assume that Creaghe made a prima facie

showing     of   discrimination,       he    failed   to    rebut      Albemarle’s

articulated      non-discriminatory         explanation    for   his    discharge.

Albemarle asserts that following the sale of a sizable portion of

its business, it had to reduce its workforce and that Creaghe’s

position was eliminated as a result.             Albemarle also asserts that

       15
      Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (“[C]onclusory allegations, speculation, and
unsubstantiated   assertions  are  inadequate   to  satisfy   the
nonmovant's burden.”).
the incorporation of a specialized computer system eliminated the

need for Creaghe’s position.       Creaghe urges that these reasons are

pretextual,    but   the   only   argument   he   offers   is   yet   another

reference to the advertisement of the Equipment Maintenance Planner

position.     He again states that this position was advertised in

local newspapers and that this advertisement undermines Albemarle’s

claim that it needed to reduce its workforce.          However, he offers

no indication why the advertisement of the Equipment Maintenance

Planner   position   --    a   different   position   with   different    job

requirements -- demonstrates pretext.

                                     III

     Since Creaghe failed either to make out a prima facie case or

to rebut Albemarle’s non-discriminatory justifications for his

discharge, the district court was correct in dismissing his suit.

     AFFIRMED.
