               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-30649
                         Summary Calendar



WAYNE ROBIDEAUX,

                                         Plaintiff-Appellant,

versus

ISB FINANCIAL CORP.; IBERIABANK,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                        USDC No. 98-CV-751
                       --------------------
                           June 26, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Wayne Robideaux appeals the district court’s grant of

summary judgment for the defendants in his action for damages

under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§ 621, et seq.; the Family and Medical Leave Act (FMLA), 29

U.S.C. § 2601 et seq.; and the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. § 1001, et seq.

     Robideaux argues on appeal that the district court’s finding

that he had suffered no adverse employment action was clearly

erroneous as a matter of law.   He contends that the evidence

     *
        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that this opinion should not be published and is not precedent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.
                           No. 99-30649
                                -2-

showed that he had been demoted, that his major responsibilities

had been taken away and assigned to younger executives, and that

he was denied a pay increase in 1997 prior to being discharged.

He argues that the Bank’s severance proposal established a prima

facie case of age discrimination as a constrictive discharge

because each choice facing him made him worse off than before the

discrimination occurred.   He argues that the evidence showed that

the Bank’s purported reasons for demoting him, taking away his

responsibilities, denying him a pay increase, and ultimately

asking for severance were false and a pretext for discrimination.

He argues that the district court erred in relying on the stray

remarks doctrine because there was direct evidence of

discrimination.   He argues that the Bank’s purported reasons

included prohibited factors, such as his health condition.

     Assuming for argument’s sake that Robideaux did establish a

prima facie case by virtue of the alleged adverse employment

actions and the offer of the severance package, Robideaux has not

produced evidence to show that the defendants’ reasons for the

employment decisions, reorganization and a critical performance

appraisal, were a pretext for age discrimination.     The alleged

age-related comments cited to by Robideaux as direct evidence of

discrimination are nothing more than stray remarks.     Brown v. CSC

Logic, Inc., 82 F.3d 651, 655 (1996).     Larrey Mouton explained

that the personnel changes which occurred were in response to the

changes in the size and scope of the bank.     As Robideaux himself

points out, even Ronnie Foret’s duties, which had initially been

expanded, had to be further divided among other management people
                            No. 99-30649
                                 -3-

as the bank continued to grow.    This fact supports the

defendants’ explanation for the changes in Robideaux’s

responsibilities and weighs against a finding of age

discrimination.

     Another factor weighing against a finding of age

discrimination is the fact that Mouton, himself aged 51 at the

time, hired Robideaux at age 56.    When the same actor hires and

fires an employee, it creates an inference that age

discrimination was not the motivation behind the termination.

Brown, 82 F.3d at 658.   The fact that the actor involved in both

employment decisions is also a member of the protected class

serves to enhance the inference.    Id.

     The facts Robideaux points to as evidence of age

discrimination are not sufficient to overcome the evidence

produced by the defendants that there were legitimate business

reasons for the actions taken in connection with Robideaux’s

employment.

     Robideaux contends that the evidence showed that the Bank’s

purported reasons for the adverse action included the prohibited

factor of his health condition, specifically, prostate disease,

for which he had taken leave to be treated in September through

November 1997.    He contends that this was the only event which

occurred that fall which could have prompted Mouton’s decision to

offer the severance package.    Robideaux does not specifically

make any argument about FMLA retaliation.    To the extent that he

is arguing his FMLA claim separately from his ADEA claim, his

FMLA claim fails for the same reasons as his ADEA claim.
                             No. 99-30649
                                  -4-

Robideaux has not offered any evidence showing a connection

between his use of leave and the decision to offer him a

severance package.     Chaffin v. Carter Co., Inc., 179 F.3d 316,

319 (5th Cir. 1999).

     Robideaux argues that the district court erred in finding

that he was not entitled to accelerated vesting of stock options

upon his “involuntary” early retirement under the bank’s

Incentive Stock Option Plan (ISOP) and Management Recognition and

Retention Plan (MRRP) plans.    Robideaux argues that he is

entitled to 100% of the shares in both the ISOP and MRRP.      His

contention rests on the proposition that both plans specify

normal retirement age as 65 or “such earlier age as may be

specified in applicable plans or policies of the Corporation.”

His evidence that there was an “applicable plan or policy”

whereby employees could retire before age 65 is: (1) the Bank’s

401(k) plan allowed for retirement earlier than age 65; and

(2) the Bank offered four other employees “early” retirement

before age 65.

     Robideaux does not cite any provision in any plan, 401(k),

ISOP or MRRP, which provides for a normal retirement age other

than 65.   All applicable retirement plans clearly state that the

normal retirement age is 65.    Robideaux contends that the Bank

maintained a policy of allowing persons to retire before age 65

because four employees were allegedly allowed to retire with full

401(k) and severance benefits in 1994.      These individuals were

separated from the Bank as part of a reduction-in-force after a

reorganization in 1994.    Any 401(k) benefits received by these
                          No. 99-30649
                               -5-

individuals was pursuant to the vesting schedule included in the

401(k) plan in effect in 1994.   The 401(k) plan was amended in

1995 and again in 1997 and provided for retirement at age 65 when

Robideaux left the Bank’s employ in 1998.

     Robideaux refers to a provision in the 401(k) plan

authorizing “disability retirement” at an earlier age.    However,

Robideaux has not asserted that he was denied disability benefits

pursuant to the 401(k) plan.

     Robideaux does not cite any evidence to support his claim

that in January 1998, there was a Bank policy or plan which

permitted retirement before age 65.    Because Robideaux had not

reached age 65 by the time he left the Bank’s employ, his shares

in the ISOP and MRRP were forfeited.

     Robideaux argues that under the provisions of a February

1995 severance agreement, he was entitled to two years’ pay and

two years’ benefits under all employee benefit plans due to a

“change in control” of the corporation.    Robideaux contends that

there was a “change in control” of the Bank because it was

converted from a mutual savings bank to a stock company,

effective April 6, 1995, which change was reported to the SEC.

     The severance agreement was entered into among ISB Financial

Corporation (the “Corporation”), Iberia Savings Bank (the

“Savings Bank”), collectively referred to as the “Employers,” and

Robideaux (the “Executive”).   Robideaux signed the severance

agreement on February 15, 1995, which provided that    “[i]f the

Executive’s employment by the Employers shall be terminated

subsequent to a Change in Control of the Corporation by (i) the
                           No. 99-30649
                                -6-

Employers other than for Cause, Disability, Retirement, or as a

result of the Executive’s death, or (ii) the Executive for Good

Reason” he shall be entitled to two years’ salary and benefits.

     The severance agreement is an employee benefit plan governed

by the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§§1001 et seq.; see Collins v. Ralston Purina Co., 147 F.3d 592

(7th Cir. 1998) (change in control severance agreement was ERISA

plan).   The agreement does not contain a provision allowing an

administrator discretionary authority to determine eligibility

for benefits or to interpret the terms of the plan.    Accordingly,

we construe the terms of the plan de novo.     Firestone Tire and

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Wegner v. Standard

Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997).

     Robideaux does not present any facts to prove that a “change

in control” within the meaning of the agreement occurred.    He

refers to the consolidated financial statement which is contained

in form 10Q (a June 1995 quarterly report) and which explains

that a stock conversion resulted in an increase in paid in

capital.   This report notes that Iberia Savings Bank converted

from a state chartered mutual savings bank to a state chartered

stock savings bank and the ISB Financial Corporation acquired all

of the common stock of the Bank.   This indicates a change in the

“Bank” not the “Corporation.”

     Robideaux has not submitted any evidence of a “change in

control” of the corporation as defined in the severance

agreement.   Because no “change in control” of the corporation
                           No. 99-30649
                                -7-

occurred, Robideaux is not entitled to any benefits pursuant to

the 1995 severance agreement.

     Robideaux argues that the defendants breached their

fiduciary duty by refusing payment of vested plan benefits under

the ISOP, MRRP, and the 1995 severance agreement.   As discussed

above, Robideaux was not entitled to any benefits under the

severance agreement because no “change in control” of the

corporation occurred.   He was not entitled to benefits under the

ISOP or MRRP because he had not reached the normal retirement age

of 65.   The fact that Robideaux has not been denied any benefits

for which he was eligible precludes his claim that the defendants

failed to administer the plans in his interest.

     AFFIRMED.
