                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                            June 25, 2007

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 No. 06-31278
                               Summary Calendar


                               EUGENE BARBER,

                                                        Plaintiff-Appellant,

                                    versus

                          THE SHAW GROUP, INC.,

                                                        Defendant-Appellee.



           Appeal from the United States District Court
                for the Middle District of Louisiana
                            (3:05-CV-211)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Pursuant to a consulting company’s recommendation that Shaw

Group, Inc. (Shaw) reduce personnel by approximately 30 percent,

Eugene Barber was laid off from his position as a pipefitter.

Barber    filed   this   action,    raising     state    and   federal      age-

discrimination claims and state breach-of-contract and abuse-of-

rights claims.    The district court granted Shaw’s summary-judgment

motion,   dismissing     the   federal   age-discrimination       claim     with

prejudice, the state-law claims without prejudice.


     *
       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this opinion should not be published and is not precedent except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.
     The federal age-discrimination claim is the only subject of

this appeal.     In contesting the summary judgment on that claim,

Barber maintains the district court improperly applied our burden-

shifting analysis.        Essentially for the reasons stated by the

district court, we affirm.

     A summary judgment is reviewed de novo, applying the same

standard as the district court.            E.g., Coleman v. New Orleans and

Baton Rouge S.S. Pilots’ Ass’n, 437 F.3d 471, 478 (5th Cir.), cert.

denied, 126 S. Ct. 2970 (2006).         The evidence is considered in the

light most     favorable    to   the   nonmovant.      E.g.,   Richardson    v.

Monitronics    Int’l,    Inc.,   434   F.3d    327,   332   (5th   Cir.   2005).

Summary judgment is proper if there is no genuine issue as to any

material fact, and the movant is entitled to judgment as a matter

of law.   FED. R. CIV. P. 56(c).

     Barber bore the initial burden of presenting a prima facie

case of age discrimination by showing:             (1) he is a member of a

protected class; (2) he was qualified for his position; (3) he was

discharged; and (4) he was either (a) replaced by someone outside

the protected class; (b) replaced by someone younger; or (c)

otherwise discharged because of age.           Baker v. Am. Airlines, Inc.,

430 F.3d 750, 753 (5th Cir. 2005).            Barber claims to have met his

burden by being:        a member of a protected class; qualified as a

pipefitter; laid off; and the subject of comments by the foreman of

his group that he would be terminated soon “because [he was] an old


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man and getting close to retirement age”.          As did the district

court, we assume Barber satisfied this burden.

     Shaw   then   bore   the   burden   of   presenting    a    legitimate,

nondiscriminatory reason for the termination.         Id.       It did so by

providing evidence that:        Barber was laid off pursuant to a

significant workforce reduction; and, although he was qualified for

his position, another worker was retained because he, unlike

Barber, was multi-skilled. See EEOC v. Texas Instruments Inc., 100

F.3d 1173, 1181 (5th Cir. 1996) (“In the context of a reduction in

force, which is itself a legitimate, nondiscriminatory reason for

discharge, the fact that an employee is qualified for his job is

less relevant — some employees may have to be let go despite

competent performance.”).

     The district court properly held that, after Shaw established

a legitimate, nondiscriminatory reason for the lay off, Barber was

required, pursuant to his ultimate burden of persuasion on the

issue of intentional discrimination, to demonstrate a genuine issue

of material fact on whether the reason for termination presented by

Shaw is merely a pretext for discrimination or is only one of the

reasons for its action.     Rachid v. Jack In The Box, Inc., 376 F.3d

305, 312 (5th Cir. 2004).       Contrary to Barber’s contentions, the

district court did not require him to disprove Shaw’s articulated

reasons; he was required only to provide evidence sufficient to




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create a    material    fact   issue   on    whether   his   termination   was

motivated by age.

      Barber failed to meet this burden.           He does not create the

requisite material fact issue on whether Shaw’s articulated reasons

for   the   reduction    in    force   and    Barber’s   relative   lack    of

qualifications were false and a pretext for discrimination. He was

not released in the first found of lay-offs; rather, it was not

until Shaw was required to reduce the number of maintenance shop

employees that he was discharged. Furthermore, the one age-related

remark by a supervisor cannot create a material fact issue on

whether Shaw’s decision was motivated by age discrimination.               The

foreman who made the remark did not have authority over the

employment decision at issue, and he was reprimanded for making it.

See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999)

(for a comment in the workplace to “provide sufficient evidence of

discrimination”, it must be, inter alia, “made by an individual

with authority over the employment decision at issue”).



                                                                    AFFIRMED




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