     Case: 17-20191      Document: 00514194952         Page: 1    Date Filed: 10/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 17-20191                                  FILED
                                  Summary Calendar                          October 13, 2017
                                                                             Lyle W. Cayce
BERTIS E. VALENTINE,
                                                                                  Clerk


              Plaintiff - Appellant

v.

NATIONAL OILWELL VARCO,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-1801


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Bertis E. Valentine appeals the district court’s grant of summary
judgment and dismissal of his civil suit against his former employer, National
Oilwell Varco, for alleged violations of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12112, and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 623. Finding no plain error, we affirm.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-20191
                                       I.
      Bertis E. Valentine (“Valentine”) worked for National Oilwell Varco
(“NOV”) as a Machine Operator III before his termination at the age of 62. In
2008, Valentine was injured on the job and was eventually granted a
continuous leave of absence beginning on June 7, 2010 and ending on a date
uncertain.    When he submitted his leave request, he signed a form
acknowledging NOV’s policy that, for medical leave because of a work-related
injury, (1) employees must submit a physician letter certifying the employee is
able to return to work before the employee could work again and (2) the
maximum period for a medical leave of absence is one year.
      With his one year of leave coming to an end, Valentine began
communicating with NOV’s human-resources manager, Lara Isaacs (“Isaacs”).
He repeatedly updated her in the four months leading up to his termination
that he had not yet received a release but was able to work with
accommodations.      Two weeks before the end of his one-year-leave period,
Isaacs sent Valentine a letter explaining that, absent a release, he would be
fired effective June 6, 2011. Valentine failed to give NOV a written release by
that date and was discharged on June 7.
      During his leave of absence, Valentine was treated by two physicians:
Dr. Kenneth G. Berliner and Dr. David W. Wimberley. On March 3, 2011, Dr.
Wimberley wrote a note certifying that Valentine could return to work for
eight-hour days but could not lift anything over 55 pounds. Valentine admits
that, prior to his termination, he gave this note to his attorneys but not NOV.
And on July 15, after Valentine’s termination, Dr. Berliner wrote NOV
explaining that Valentine had been able to return to work on May 17 and asked
NOV to rehire him. Finding this release untimely, Isaacs told Valentine he
would need to reapply for his old job. NOV did not hire or promote anyone to
Valentine’s old position, choosing instead to eliminate it.
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                                  No. 17-20191
                                        II.
        In December 2011, Valentine filed a charge of discrimination with the
Equal     Employment     Opportunity      Commission,       alleging   that   NOV
discriminated against him on the basis of disability and age. After receiving
his right-to-sue letter, Valentine filed a complaint in the Southern District of
Texas, asserting claims under the ADA and ADEA. NOV then filed a motion
for summary judgment on June 10, 2016. The magistrate judge issued a
memorandum and recommendation (M&R) to grant NOV’s motion in part and
dismiss all of Valentine’s claims with prejudice. Neither Valentine nor NOV
filed a timely objection to that M&R. And finding no clear error, the district
court adopted the magistrate’s findings and recommendation to grant
summary judgment. Valentine now appeals the district court’s ruling as to his
age- and disability-discrimination claims and asks this court to reverse and
remand to the district court.
                                       III.
        Usually, we review the grant of summary judgment de novo. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). But plain error review applies where
“a party did not object to a magistrate judge’s findings of fact, conclusions of
law, or recommendation to the district court” despite being “served with notice
of the consequences of failing to object.” United States ex rel. Steury v. Cardinal
Health, Inc., 735 F.3d 202, 205 n.2 (5th Cir. 2013) (citing Douglass v. United
Servs. Auto Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1)).
        Here, the magistrate judge warned Valentine that the failure to file
written objections within 14 days from his receipt of the M&R would bar him
from attacking the factual findings and legal conclusions on appeal.
Nevertheless, he did not file timely objections, so the district court did not
conduct a de novo review of the record. As a result, the factual findings and
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                                         No. 17-20191
legal conclusions adopted by the district court are reviewed for plain error. To
prevail under that standard, Valentine “must show (1) that an error occurred;
(2) that the error was plain, which means clear or obvious; (3) the plain error
must affect substantial rights; and (4) not correcting the error would seriously
impact the fairness, integrity, or public reputation of judicial proceedings.”
Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825–26 (5th Cir. 2015)
(quoting Septimus v. Univ. of Hous., 399 F.3d 601, 607 (5th Cir. 2005)); see also
Douglass, 79 F.3d at 1424. 1
                                               IV.
       The complaint alleges that NOV fired Valentine in violation of the ADA
and ADEA. The district court adopted both the magistrate’s findings and
conclusion that Valentine failed to establish a prima facie case for
discrimination       under      the    ADA      and     ADEA        and    the     magistrate’s
recommendation that summary judgment be granted on those claims.
       To establish a prima facie case of discrimination under either the ADA
or ADEA, a plaintiff must prove that he was qualified for the position in
question. Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)
(ADEA); Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th Cir. 2001)
(ADA). The court looks only to whether the employee was qualified at the time
of his termination. Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413,
418 (5th Cir. 2017). Here, the district court found that Valentine was not
qualified to work as a Machine Operator III because he did not present NOV




       1  Both parties fail to acknowledge the applicability of plain error review in their
briefing, but “[i]f neither party suggests the appropriate standard, the reviewing court must
determine the proper standard on its own.” United States v. Vontsteen, 950 F.2d 1086, 1091
(5th Cir. 1992) (en banc). The court must apply plain error review here. Douglass, 79 F.3d
at 1428–29 (“[A] party’s failure to file written objections . . . shall bar that party, except upon
grounds of plain error, from attacking on appeal . . . .” (emphasis added)).
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                                 No. 17-20191
with a physician’s letter releasing him to return to work before his one-year
leave ended.
      Valentine contests this finding on appeal and points to four items of
evidence tending to show he was qualified: (1) the March 3, 2011 release, (2)
the July 15, 2011 release, (3) his regular conversations with Isaacs regarding
his return, and (4) NOV’s invitation for him to reapply. This argument is
unavailing. Valentine offered no evidence that he gave the March 3 or July 15
releases to NOV prior to his termination on June 7. In fact, the evidence shows
only that he did not. And although there may have been a misunderstanding
stemming from his conversation with Isaacs, NOV’s policy required a
physician’s letter, not a verbal assurance from Valentine to Isaacs that he could
return to work with accommodations.          Finally, the question is whether
Valentine was qualified at the time of his termination. Any evidence bearing
on whether Valentine was qualified when NOV later told him to reapply for
his old position is not on point. Valentine failed to present sufficient evidence
to create a fact question that the district court plainly erred in dismissing his
discrimination claims stemming from his termination.
      We also agree with the district court’s dismissal of Valentine’s failure-to-
rehire claims under the ADA and ADEA. To establish a prima facie case of
discrimination where the alleged adverse employment action is failure to
rehire, the plaintiff must show that “the employer continued to seek applicants
with the plaintiff’s qualifications.” McCullough v. Houston Cty. Tex., 297 F.
App’x 282, 286 (5th Cir. 2008) (citing LaPierre v. Benson Nissan, Inc., 86 F.3d
444, 448 (5th Cir. 1996)). The district court concluded that Valentine failed to
present evidence that NOV continued to seek applicants for his position
because that position was eliminated after his termination.
      Valentine does not dispute that his Machine Operator III position was
eliminated. Instead, he argues now that NOV hired younger, non-disabled
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                                  No. 17-20191
men for the Machine Operator I position, which is “almost identical” to his
former position.   Valentine cites no authority for his reliance on similar but
different positions to make his prima facie showing. Indeed, the Machine
Operator III position required more experience and involved additional
primary responsibilities than the Machine Operator I position. The district
court did not plainly err is dismissing his failure-to-rehire claims.
                                       V.
      We conclude that the district court did not plainly err in dismissing
Valentine’s claims. Accordingly, the decision of the district court adopting the
magistrate judge’s recommendation is
                                                                    AFFIRMED.




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