                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                   March 16, 2007

                                                       Charles R. Fulbruge III
                                                               Clerk
                           No. 05-20630


                          BERNARD WHITE,

                                              Plaintiff-Appellant,

                              versus

          OMEGA PROTEIN CORPORATION; OMEGA PROTEIN INC.,

                                             Defendants-Appellees.



           Appeal from the United States District Court
                for the Southern District of Texas
                          (4:03-CV-3632)


Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit

Judges.

PER CURIAM:*

     Bernard White contests the summary judgment awarded his former

employer, Omega Protein Corporation, against his claims under the

Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq.

(ADEA), and the Employee Retirement Income Security Act, 29 U.S.C.

§ 1001 et seq. (ERISA).   AFFIRMED.




     *
       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this opinion should not be published and is not precedent except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.
                                      I.

     Omega’s business involves catching and processing menhaden to

sell as fish meal and oil.     In 1998, White, then 50 years old, was

hired as a vice president by business acquaintance Joseph von

Rosenberg, Omega’s president and CEO.          White was to manage Omega’s

governmental    affairs,   investor       relations,     and   public   affairs.

Governmental affairs was White’s primary responsibility, as any

political or regulatory actions that might jeopardize Omega’s

fishing activities were of critical importance.

     Although White was given a high level of responsibility and

autonomy during his first few years, several incidents caused von

Rosenberg to question White’s performance. First, in 2001, despite

White’s opposition, New Jersey passed legislation banning Omega

from fishing in its waters (New Jersey incident).

     Then, in 2002, Omega was caught unaware by an impending

Mississippi    public   regulatory    hearing       to   consider    restricting

Omega’s Mississippi fishing grounds (Mississippi incident).               After

engaging a law firm, Omega ultimately defeated this proposed

restriction; but, it disclosed the incident as a possible adverse

outcome in its quarterly public reporting.               White’s governmental-

affairs   responsibilities    were        reduced    after     the   Mississippi

incident.     (This reduction occurred in September 2002, shortly

after White’s return to full-time status, after approximately six

months of cancer treatment and recovery.)



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     Finally, in 2003, Alabama passed a regulation restricting a

portion of Omega’s fishing grounds (Alabama incident).               Omega

recouped most, but not all, of these grounds.

     White was terminated by von Rosenberg in 2003. Concomitantly,

White was offered, and accepted, the opportunity to remain with

Omega   as   an   independent   consultant   under   direct   supervision.

Because he was no longer an Omega employee, White no longer

received employee benefits.

                                    II.

     A summary judgment is reviewed de novo, applying the same

standards as the district court. E.g., Keelan v. Majesco Software,

Inc., 407 F.3d 332, 338 (5th Cir. 2005).        Such judgment is proper

when “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 is entitled to a judgment as a matter of law”.           FED.

R. CIV. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986).      A genuine issue of material fact (material fact

issue) exists “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party”.           Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).          In reviewing a summary

judgment, all justifiable inferences are drawn in favor of the

nonmovant.    E.g., Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956

(5th Cir. 1993).

                                     3
                                         A.

       White contends his termination was age discrimination.                   In

reviewing the summary judgment against White’s ADEA claim based on

circumstantial evidence, the McDonnell Douglas burden-shifting

framework is employed.         E.g., Patrick v. Ridge, 394 F.3d 311, 315

(5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973)).       For summary-judgment purposes, a material fact issue

would preclude such judgment against White.

       Pursuant to this framework, White must present a prima facie

case   of     discrimination,       which,     under   ADEA,   requires   him   to

establish he:         (1) is a member of the protected class (over 40

years old); (2) was qualified for his position; (3) was discharged;

and (4) was replaced by someone outside the protected class,

someone younger, or was otherwise discharged because of age. E.g.,

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223-24 (5th Cir.

2000) (citation omitted).

       A   prima   facie     case   creates     a   rebuttable    presumption   of

unlawful employer discrimination.              E.g., Patrick, 394 F.3d at 315.

To    rebut    this     presumption,     the    employer   must    articulate    a

legitimate, nondiscriminatory reason for its decision.                 Id.   If it

does so, the presumption of discrimination falls away; the employee

must       then       show    the      employer’s       putative     legitimate,

nondiscriminatory reason was merely a pretext for discrimination.

Id.

                                          4
      Whether White presented a prima facie case is a point of much

contention between the parties.                 In any event, he fails to show,

for      summary-judgment          purposes,           that      Omega’s     proffered

nondiscriminatory reasons for his termination were mere pretext.

      Omega maintains White’s termination was, inter alia, due to

the     New    Jersey,       Mississippi,       and        Alabama   incidents,   which

illustrated his inadequacy in his critical governmental-affairs

role.    In attempting to create a material fact issue on pretext,

White contends:        the incidents were either not serious, or not his

fault; his immediate rehire as an independent consultant shows he

was qualified; and, at his termination meeting, von Rosenberg told

him he was “too old and tired for the job”.

      Concerning       the     alleged   too-old-and-tired             comment,   White

asserts the district court erred in refusing to consider it.                        The

comment was first mentioned by White in his deposition.                             The

district court refused to consider the alleged comment because it

was not mentioned until 18 months after White’s termination; it was

not alleged in his complaint (even as twice amended), his sworn

EEOC memorandum, or his documentation of his termination meeting.

Relying on Seshadri v. Kasraian, 130 F.3d 798 (7th Cir. 1997), the

district court, while recognizing it “must construe all facts in

favor of [the] [p]laintiff”, concluded it was “not required to

accept    as    true     a   statement   that         no    reasonable   person   would




                                            5
believe”.     White v. Omega Protein Corp., 390 F. Supp. 2d 604, 609

(S.D. Tex. 2005).

     We need not decide whether this belatedly-claimed comment

should    have     been   considered     by   the   district     court.         Even

considering it in our de novo review, White’s summary-judgment

evidence of pretext does not, in the light of the “same-actor

inference” adopted in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th

Cir. 1996), create a requisite material fact issue.               When the same

person is responsible for hiring and terminating an individual, who

was already a member of the AEDPA-protected class when hired,

there    is   an   inference    that   age    was   not   the   reason    for    the

termination. See id. at 658 (“[c]laims that employer animus exists

in termination but not in hiring seem irrational.                        From the

standpoint of the putative discriminator, [i]t hardly makes sense

to hire workers from a group one dislikes ... only to fire them

once they are on the job” (quoting Proud v. Stone, 945 F.2d 796,

797 (4th Cir. 1991)) (internal quotation marks omitted)).

     Moreover,      “[t]he     fact    that   the   actor    involved     in    both

employment decisions is also a member of the protected class only

enhances the inference”.        Id. (citation omitted).         As noted, White

was hired at age 50 by von Rosenberg, and was terminated five years

later, also by von Rosenberg, who was then 44.

     Further, White does not dispute the occurrence of the New

Jersey, Mississippi, and Alabama incidents.                 Nor does he dispute

                                         6
the reduction in his responsibilities. Finally, although White was

rehired      by   Omega,    it   was   in       a       significantly-less-autonomous

consulting capacity.

      In sum, White does not create a material fact issue on whether

Omega’s proffered reasons for terminating his employment were

pretext for age discrimination.                  Therefore, summary judgment was

proper against his ADEA claim.              See id. at 656-58 (applying same-

actor inference, and holding plaintiff failed to meet evidentiary

burden on pretext issue, even where employer’s alleged comments

“impl[ied] that [the employer] believed [the employee’s] age was

affecting his job performance”); West v. Nabors Drilling USA, Inc.,

330   F.3d    379,   385    (5th   Cir.     2003)          (“It    is   ‘possible   for    a

plaintiff’s evidence to permit a tenuous inference of pretext yet

be    insufficient         to    support            a     reasonable      inference       of

discrimination.’” (quoting Crawford v. Formosa Plastics Corp., La.,

234 F.3d 899, 903 (5th Cir. 2000))).

                                            B.

      White also maintains his termination wrongfully interfered

with his employment benefits, in violation of ERISA. See 29 U.S.C.

§ 1140.       Because White fails to create a material fact issue

regarding     Omega’s      proffered   reasons            for     his   termination,   the

summary judgment against his ERISA claim was also proper.                              See

Unida v. Levi Strauss & Co., 986 F.2d 970, 979-80 (5th Cir. 1993)

(holding, to recover under ERISA, the plaintiff must show the


                                            7
employer had the “specific intent” of interfering with plaintiff’s

ERISA benefits).

                              III.

     For the foregoing reasons, the judgment is

                                                     AFFIRMED.




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