                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                                 No.    98-31251

                                JOHN M. ROPER,

                                                         Plaintiff-Appellant,

                                       VERSUS

                        EXXON CORPORATION; ET AL,

                                                                   Defendants,

                           EXXON CORPORATION,

                                                          Defendant-Appellee.


            Appeal from the United States District Court
                for the Eastern District of Louisiana
                            (97-CV-1971-T)

                                October 6, 1999

Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

       John M. Roper (“Roper”) appeals the grant of summary judgment

in favor of Exxon Corporation (“Exxon”) on several grounds.               Roper

also    argues   that   Exxon     improperly       withheld   evidence   during
discovery which pursuant to Fed. R. Civ. P. 37(c) prohibited its

use.   We affirm the district court’s grant of summary judgment and

its admission of the evidence in question.

                        I. FACTS AND PROCEEDINGS

       Exxon hired Roper in 1974 as an in-house attorney in its


       1
      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this opinion should not be published and is not precedent except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.
Houston law department.        At the time, Roper was 33 years old.

Exxon in 1975 reassigned Roper to its Southeastern Production

Division in New Orleans where Roper remained until his January 30,

1997 termination.

     The Exxon Law Department annually evaluates its employees

through comparative rankings based on their relative contributions

and performance among the other attorneys in their rank group.              In

1993,   Exxon    adopted     the   Continuous     Performance    Improvement

guidelines.      When employees rank in the bottom 10 percent under

these guidelines, Exxon advises them of their standing and provides

special management attention to rectify their poor showing. Under

the guidelines, Exxon may reassign or terminate these employees if

they fail to show sustained improvement.

     In December 1994, when Roper was 53 years old, his supervisor,

Bill Hurt (“Hurt”) told him that he was ranked at the bottom of his

rank group.       The following year Exxon again ranked its house

counsel and Hurt informed Roper in December 1995 that he would be

terminated because of his low ranking.             Roper asked Hurt if he

could   remain    employed   until    he   was   eligible   to   retire   with

annuitant status at age 55.        Hurt said that was acceptable.     On May

22, 1996, after Roper received another low ranking, the head of

Exxon’s litigation section, John Tully, informed Roper that he

would be terminated on or after November 1, 1996, when Roper would

qualify for annuitant status.         Overall, under the CPI guidelines,

Exxon ranked Roper in the bottom 10 percent of his rank group from

1994 to 1996.     Exxon later granted Roper’s subsequent request to


                                       2
remain employed for tax reasons until January 1997.                   He officially

left Exxon on January 30, 1997.

     On    June     25,   1997,   Roper       sued    Exxon   under    (1)The   Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621

et seq.; (2) Louisiana’s Age Discrimination Act (“LADEA”), La. Rev.

Stat.   Ann.    §   23:971   et   seq.        (West   1998)2,   and    Louisiana’s

Commission on Human Rights Act (“LCHRA”), La. Rev. Stat. Ann. §

51:2231 et seq. (West 1999); (3) La. Civ. Code Ann. art. 2315 (West

1997); (4) Section 510 of the Employee Retirement Income and

Security Act (“ERISA”) 29 U.S.C. § 1140; and (5) the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3).

     The district court granted Exxon summary judgment on all

grounds.       Specifically the District Court determined that (1)

Roper’s evidence of age discrimination did not create a factual

issue under the ADEA; (2) alternatively, assuming a factual issue

did exist, Roper’s evidence did not create a fact issue whether

Exxon’s non-discriminatory reason for terminating Roper was pre-

textual or false; (3) Roper’s Louisiana discrimination claims and

Article 2315 claim were time-barred, and Article 2315 did not

provide relief for employment discrimination; (4) Roper’s evidence

did not create a factual issue concerning whether Exxon intended to

interfere with his benefit rights as required for an ERISA claim;

and (5) Roper’s evidence did not create an issue of fact as to

whether he engaged in protected conduct under the FLSA.

    2
      Since the filing of this lawsuit, the Louisiana Legislature
has consolidated the LADEA into the Louisiana Employment
Discrimination Law, La. Rev. Stat. Ann. § 51:2231 (West 1999).

                                          3
     Roper also contends that the district court improperly allowed

Exxon to rely on evidence of ranking lists which Exxon failed to

disclose during discovery pursuant to Fed. R. Civ. P. 37(c).

II. STANDARD OF REVIEW

     We review a grant of summary judgment de novo, viewing the

facts and inferences in the light most favorable to the party

opposing the motion.   See Hall v. Gillman, Inc., 81 F3d 35, 36-37

(5th Cir. 1996).    Summary judgment is appropriate if the record

discloses “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); accord Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).   We review a

district court’s decision on a discovery matter for abuse of

discretion. See United States v. $9,041,598.68, 163 F.3d 238, 252

(5th Cir. 1998).

III. DISCUSSION

A. ADEA

     To survive summary judgment, Roper must state a prima facie

case of age discrimination under 29 U.S.C. § 623(a)(1).         The

parties agree that Roper was: (1) within the protected age group;

(2) discharged; and (3) qualified for the position.     The parties

dispute whether Roper has created a fact issue that either (i) he

was replaced by someone outside the protected class, (ii) replaced

by someone substantially younger, or (iii) otherwise discharged

because of his age.    Bodenheimer v. PPG Industries, Inc., 5 F.3d

955, 957 (5th Cir. 1993).


                                 4
     We find that Roper has not created an issue of material fact.

First, Exxon     did   not    replace   Roper   with    someone      outside   the

protected class.       Instead, Exxon assigned his workload to co-

workers and outside counsel - many of whom where not substantially

younger than Roper.          Second, Roper has not shown a pattern of

discriminatory conduct by Exxon that suggests he was terminated

because of his age. Further, Exxon’s non-discriminatory reason for

terminating    Roper   was    not   pre-textual.        In   fact,    the   record

conclusively shows that Roper was terminated because of his lack of

interpersonal skills.

B. LADEA, LCHRA and Article 2315

     Because we determined that Roper’s evidence does not create a

fact issue concerning his ADEA claim, Roper’s LADEA claim must also

fail since we apply the ADEA’s standards in resolving claims under

Louisiana’s employment discrimination statutes. See Hypes v. First

Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998).                   In addition,

Roper’s LADEA, LCHRA and Article 2315 claims are time barred

because they were not brought within one year of notification of

his termination. Jay v. International Salt Co., 868 F.2d 179, 180-

81 (5th Cir. 1989).          Roper filed suit on June 25, 1997.                He

contends that the prescriptive period for his claims should run

from the last notification of his termination, January 6, 1997,

because Exxon’s multiple postponements of his date of termination

rendered   the    initial     notification      vague    and    indeterminate.

However, Roper admits that Exxon notified him on May 22, 1996, that

he would be terminated on or after November 1996.              Moreover, Exxon


                                        5
delayed Roper’s termination date to accommodate his annuitant

status and assist him in obtaining a tax advantage.                The evidence

clearly establishes that Roper filed suit more than one year after

Exxon notified him that his termination was inevitable.3

C. ERISA

       Roper argues that the district court erred in determining that

his evidence did not create a fact issue concerning whether Exxon

specifically intended to interfere with his benefit rights as

required by Section 510 of ERISA. See Hines v. Massachussetts Mut.

Life Ins. Co., 43 F.3d 207, 209 (5th Cir. 1995) (holding an

essential element of a Section 510 claim is proof of defendant’s

specific discriminatory intent).            Roper offers no evidence arguing

only   that   resolution    of   this       issue   on   summary   judgment   is

inappropriate because it turns on a party’s state of mind.              A party

cannot raise a fact issue simply by stating the defendant’s state

of mind is at issue.       See McGann v. H&H Music Co., 946 F.2d 401,

408 (5th Cir. 1991).

D. FLSA

       Finally, Roper contends that the district court improperly

found no issues of material fact regarding his FLSA claim.                    The

FLSA provides that it is unlawful: “to discharge or in any other

       3
        Some courts have determined that the prescription period
commences on the date of termination and not on the date of notice
of termination. See, e.g., Harris v. Home Sav. and Loan Ass’n, 663
So.2d 92, 94-95 (La. App. 3d Cir. 1995) (LADEA claim) and Brunett
v. Dept. of Wildlife and Fisheries, 685 So.2d 618, 621 (La. App.
1st Cir. 1988) (LADEA claim). However, unlike Harris and Brunett
where the plaintiffs received a vague and indeterminate notice of
termination, Exxon clearly told Roper far in advance that he would
be terminated on a specific date.

                                        6
manner discriminate against any employee because such employee has

filed any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter, or has testified or is

about to testify in any such proceeding or has served or is about

to serve on an industry committee.”              29 U.S.C. § 215(a)(3).      Roper

argues that he notified Exxon on December 14, 1995, that he was

considering filing a discrimination claim.              However, he says Exxon

did not notify Roper of his termination until May 22, 1996.                     The

record conclusively shows otherwise.               Roper initially did inform

Exxon in a memorandum to Hurt that he was considering “asserting

claims and pursuing remedies under appropriate federal and state

statutes” on December 14, 1995.                (R. at 705).      However, in that

same       memorandum,   Roper    refers   to    “the   company’s    decision    to

terminate [him] . . . .” (R. at 705).              Roper knew of his imminent

termination      before   he     threatened     legal   action    against   Exxon.

Therefore, the district court correctly dismissed his FLSA claim.

E. Exxon’s Withholding of Evidence

       Roper contends that Fed. R. Civ. P. 37(C)4 prohibits Exxon’s

use of information from certain ranking lists because Exxon failed

to disclose this information to Roper.                   While Exxon produced

ranking lists from 1995-97, it stated that it had no lists earlier

than 1993 and would produce only the lists it could locate.


       4
         Fed. R. Civ. P. 37(c)(1) provides:
       A party that without substantial justification fails to
       disclose information required by Rule 26(a) or 26(e)(1) shall
       not, unless such failure is harmless, be permitted to use as
       evidence at a . . . hearing or on any motion any witness or
       information not so disclosed.

                                           7
However, in support of its Motion for Summary Judgment, Exxon

submitted the affidavit of Mary Randolph who referred to data in

her affidavit from ranking information as early as 1987.

     We do not find that the district court abused its discretion

in permitting Exxon to use such evidence in its Motion for Summary

Judgment.      In fact, there is ample evidence in the record to

suggest that Roper had access to the information he argues he did

not receive.    Exxon did disclose Roper’s rank group percentile for

salary budget years 1988-1997 (R. at 569).    Moreover, if Roper had

more thoroughly deposed Exxon representatives regarding this issue

he would have discovered that even though Exxon’s rank groups

change from year to year, the company maintains historical rank

information on an employee by employee basis.    In conclusion, the

discovery material Roper alleges Exxon withheld was available to

Roper although in a different composition than what he was seeking.

     AFFIRMED.




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