                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                              July 28, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                              No. 04-20572


                             EDWARD FANNING,

                                                    Plaintiff-Appellant,

                                 versus

     METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS,

                                                        Defendant-Appellee.


          Appeal from the United States District Court
                for the Southern District of Texas
                          (4:02-CV-4544)


Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

PER CURIAM:*

     Edward    Fanning    challenges    the   summary     judgment     awarded

Metropolitan    Transit     Authority     (Metro)       against      his    age

discrimination and retaliation claims under the Age Discrimination

in Employment Act, 29 U.S.C. § 621, et seq. (ADEA).            AFFIRMED.

                                   I.

     Metro employed Fanning as a manager of architecture in its

planning, engineering, and construction department.                  Fanning’s

direct supervisor was Gary Lemley (age 51); John Mickelson (age 50)



     *
       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this opinion should not be published and is not precedent except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.
was the department head.       On 9 November 2001, they met with Fanning

to discuss their dissatisfaction with his work, including his

recent    inability      to   meet   deadlines    and   his   insubordinate

communications with Metro executives.             They told Fanning they

wanted to terminate his employment immediately, but offered him

three options: resign; be fired; or take advantage of Metro’s early

retirement policy upon his upcoming 55th birthday in March 2002.

Fanning responded that they had violated federal law by suggesting

he take early retirement.

       Several   days   later,   Fanning   complained    to   Metro’s   human

resources department (HR) about the 9 November meeting.            HR later

placed Fanning on a 60-day corrective action program (CAP).

       In February 2002, after he had been placed on the CAP, Fanning

filed an age discrimination complaint with the EEOC, claiming the

9 November option and Lemley and Mickelson’s subsequent inquiries

about his retirement, constituted age discrimination.              The EEOC

determined there was no basis for Fanning’s claim and issued a

right-to-sue letter in August 2002.              Fanning’s employment was

terminated after he received that letter.

       Fanning brought this ADEA action against Metro, claiming age

discrimination and retaliation.           After limited discovery, Metro

moved for summary judgment, contending Fanning could not present a

prima facie case for either claim.           Pursuant to the standard for

such   judgment,   the    district   court    held:     Fanning   could   not



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establish a prima facie case for either claim; and, even if he

could, he could not show that Metro’s legitimate reasons for firing

him were pretext for an underlying discriminatory motive.

     Pursuant to Federal Rule of Civil Procedure 59(e), Fanning

moved for reconsideration.       He contended the court erred when it:

(1) granted summary judgment prior to the deadline for production

of compelled discovery; and (2) granted such judgment.

     The   district   court     denied       the    motion,      holding:     it    was

untimely; and, in the alternative, the timing of the summary

judgment was not prejudicial to Fanning because the evidence he

sought did not support his prima facie case.

                                      II.

     Fanning appeals from the summary judgment and denial of his

motion to reconsider.      We address each in turn.

                                      A.

     A summary judgment is reviewed de novo.                      E.g., GDF Realty

Inv., Ltd. v. Norton, 326 F.3d 622, 627 (5th Cir. 2003), cert.

denied, 125 S. Ct. 2898 (2005).               Such judgment is proper when

“there is no genuine issue as to any material fact and ... the

[movant] is entitled to a judgment as a matter of law”.                       FED. R.

CIV. P. 56(c); e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

All inferences must be drawn in favor of the nonmovant, Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986);    but,   “there   is   no   issue         for   trial    unless    there    is


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sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.                   If the evidence is merely

colorable, or is not significantly probative, summary judgment may

be granted”,     Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986) (internal citations omitted).

       To establish a prima facie case of ADEA age discrimination, a

plaintiff must show: “1) he was discharged; 2) he was qualified for

his position; 3) he was within the protected class [over age 40];

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

someone younger, or was otherwise discharged because of his age”.

West v. Nabors Drilling USA, Inc., 330 F.3d 379, 384 (5th Cir.

2003) (quotation marks omitted).              To establish a prima facie case

of ADEA retaliation, a plaintiff must show:                he was qualified for

his position; and “(1) ... he engaged in a protected activity, (2)

... there was an adverse employment action, and (3) ... a causal

link   existed   between    the    protected        activity   and   the   adverse

employment action”.        Holtzclaw v. DSC Communications Corp., 255

F.3d 254, 259 (5th Cir. 2001) (citation omitted).

       The burden-shifting analysis presented in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), applies to ADEA discrimination

and    retaliation   claims       when,       as   here,   they   are   based   on

circumstantial evidence.      Patrick v. Ridge, 394 F.3d 311, 315 (5th

Cir. 2004) (ADEA retaliation); West, 330 F.3d at 384 (ADEA age

discrimination).     If the employee makes a prima facie showing, the

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employer “must produce evidence of a legitimate, nondiscriminatory

reason for its decision to terminate [plaintiff’s] employment”.

West, 330 F.3d at 384.   If the employer meets this requirement, the

court must “decide whether [plaintiff] has proved intentional

discrimination.    To meet his burden of proof, [plaintiff] can rely

on evidence that [the employer’s] reason for terminating him was

pretextual”.    Id. at 385 (internal citation omitted).

     The district court held Fanning could not show a prima facie

case for either claim because he did not present any direct or

circumstantial evidence that he was fired for anything but personal

or professional reasons.    The court further determined that, even

if Fanning could do so, he presented no evidence of discriminatory

motive or retaliatory animus by Metro.

     Fanning contends the district court erred in concluding: (1)

he could not establish a prima facie case for either claim; (2) in

response to Fanning’s claims, Metro presented legitimate, non-

discriminatory reasons for firing him; and (3) Fanning failed to

present evidence that Metro’s reasons for firing him were pretext.

Fanning also maintains the district court refused incorrectly to

apply the mixed-motive standard to his claims. Metro responds that

Fanning did not meet his summary judgment burden of presenting a

prima facie case for either claim because he could not show any

evidence   of   discriminatory   animus   on   Metro’s   part.   In   the

alternative, Metro maintains the claims still fail as a matter of


                                   5
law because Fanning could not produce any evidence that Metro’s

proffered motives for firing him were anything but professional.

       Essentially for the reasons stated by the district court,

Fanning’s prima facie case for age discrimination fails because,

inter alia, Lemley and Mickelson’s offer at the 9 November 2001

meeting to allow him to resign when he reached early retirement

age, instead of being fired earlier, is not evidence that Fanning

was terminated because of his age.           See Fagan v. New York State

Elec. & Gas Corp., 186 F.3d 127, 133 (2d Cir. 1999).

       Fanning’s prima facie case for retaliation fails because he

cannot establish a causal connection between his termination,

planned since November 2001, and the ADEA-protected activities of

complaining to HR or filing a claim with the EEOC.          “Employers need

not    suspend    previously    planned      [employment    actions]   upon

discovering that a [claim with the EEOC] has been filed, and their

proceeding along lines previously contemplated, though not yet

definitively determined, is no evidence whatever of causality”.

Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001).

       Because summary judgment was proper based on Fanning’s failure

to    establish   a   prima   facie   case   for   age   discrimination   or

retaliation, we need not reach Fanning’s contention that the

district court applied the incorrect standard in examining whether

he could prove pretext.




                                      6
                                     B.

     The denial of a Rule 59(e) motion is reviewed for abuse of

discretion.     E.g., Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir.

2000).    In claiming abuse of discretion, Fanning asserts: (1) his

motion was timely; and (2) summary judgment should not have been

awarded before the deadline for a recently-granted motion to compel

evidence, and, had the court waited until after that deadline, he

could have presented evidence of pretext.        Metro replies:   Fanning

waived any discovery issue when he did not move for a continuance

under    Rule   56(f)   (party   opposing   summary   judgment   may   seek

continuance for further discovery if, for reasons stated, it cannot

present facts adequate to justify opposition); and any error was

harmless because, as Fanning acknowledged, the requested evidence

concerned pretext and did not support his prima facie case for

either claim.

     Fanning’s motion was timely.           Pursuant to Rules 59(e) and

6(a), he filed it within the requisite ten days after the entry of

the summary judgment order – not counting intervening Saturdays and

Sundays.

     In any event, the district court did not abuse its discretion

in ruling, in the alternative, against the motion.        “This court has

long recognized that a plaintiff’s entitlement to discovery prior

to a ruling on a motion for summary judgment is not unlimited, and

may be cut off when the record shows that the requested discovery


                                     7
is not likely to produce the facts needed by the plaintiff to

withstand a motion for summary judgment.”          Washington v. Allstate

Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (citation omitted).

Further, our court has foreclosed a party’s contention on appeal

that it had inadequate time to marshal evidence to defend against

summary judgment when the party did not seek Rule 56(f) relief

before the summary judgment ruling.         Potter v. Delta Airlines, 98

F.3d 881, 887 (5th Cir. 1996).          A Rule 56(f) motion, not one for

reconsideration, is the proper remedy for a party claiming summary

judgment is inappropriate because of inadequate discovery.              E.g.,

Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694,

719-20   (5th   Cir.   1999),   cert.    denied,   531   U.S.   917   (2000);

Washington, 901 F.2d at 1285.

                                   III.

     For the foregoing reasons, the judgment is

                                                                AFFIRMED.




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