EMILE J. KLEIN, Plaintiff-Appellant, versus GREAT ATLANTIC & PACIFIC TEA COMPANY, Defendant-Appellee.
No. 96-30990
United States Court of Appeals, Fifth Circuit
June 3, 1997
Summary Calendar
Before POLITZ, Chief Judge, JOLLY and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:*
Emile J. Klein appeals an adverse summary judgment in his Age Discrimination Employment Act1 and Americans With Disabilities Act2 claims
BACKGROUND
Klein worked for A & P from 1977 to 1995, first as a grocery store stock clerk and then for twelve years as a store manager. In June 1994 he had a heart attack and missed two months of work following heart surgery. When he returned, the store he had managed previously was being closed and he was reassigned. He was terminated 11 months later. He was 54 years old.
Klein filed a charge with the EEOC and received a right to sue letter. He then filed the instant action claiming discrimination under both the ADA and the ADEA, contending that he was fired because A & P perceived him as a liability after his heart attack.
A & P maintains that it fired Klein for failing to comply with its inventory policy which requires store managers to minimize inventory losses or shortages. Inventory shortages are measured on a point system. According to A & P, any manager whose store has three consecutive inventories with shortages in excess of 100 points is placed on probation. Shortages in that manager’s next two inventories must total less than 100 points; otherwise, the manager is subject to termination. A & P’s records show that Klein’s inventories reflected shortages exceeding 100
On May 9, 1996 the parties held a pretrial scheduling conference, which set August 7, 1996 for the completion of discovery and July 30, 1996 as the deadline for filing pretrial motions. On July 3, Klein gave a deposition. On July 30, A & P moved for summary judgment. On that same day, Klein served interrogatories and a request for production of documents, just one week before the discovery deadline. A & P responded by producing a copy of Klein’s personnel file, documents related to his history of inventory shortages at various stores that he managed, and the inventory history of the store he was managing when he was fired. A & P refused to produce other requested documents, contending that they were irrelevant. Documents in the latter category included inventory records from other stores and other managers’ personnel files.
On August 5, Klein requested and received a two-week extension to respond to A & P’s motion for summary judgment. He also requested a sixty day extension
Along with his response to A & P’s motion for summary judgment Klein asked to supplement his opposition, asserting that once A & P complied with his discovery requests he would have additional arguments to support his discrimination claims. Klein also filed a motion to compel. His attorney claimed that he wanted to compare the inventory record for Klein’s store before and after he took over as manager. He sought to show that other store managers with inventory records worse than Klein’s were not fired, thereby establishing differential treatment between Klein and other managers who were younger and in better health.
The district court denied both of Klein’s requests for the extension of discovery. Finding that Klein failed to show that he could establish a prima facie
ANALYSIS
Motion to extend discovery.
We review the denial of a motion to extend discovery for abuse of discretion.3 The district court construed Klein’s motion as a request under
Although Klein’s motion for extended discovery arguably met the requirements above, we cannot say that it was an abuse of discretion for the district court to deny his motion. When “the nonmoving party has not diligently pursued discovery of [the evidence it now seeks] the court need not accommodate the nonmoving party’s belated request.”7 Klein’s arguments for extending the discovery cutoff are not persuasive in light of the obvious delay in initiating discovery. The reasons assigned for needing more time are not persuasive. As the district court observed, “[p]laintiff did not diligently seek discovery, and created his own predicament through his own delay.”
Motion for Summary Judgment.
We review a district court’s grant of summary judgment de novo.8 Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.9 All fact questions must be
To prove a claim under the ADEA, the plaintiff must establish a prima facie case by showing that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of the discharge; and (4) he was either (i) replaced by someone outside the protected class, (ii) replaced by someone younger, or (iii) otherwise discharged because of his age.10 To prove a claim under the ADA, the plaintiff must establish a prima facie case by showing that: (1) he suffers from a disability; (2) he is qualified for the job; (3) he was subjected to an adverse employment action; and (4) he was replaced by a person without a disability or was treated less favorably than employees without a disability.11
We apply the same analysis to ADA and ADEA claims that we apply to Title VII discrimination claims.12 Under the McDonnell Douglas-Burdine framework, an inference of unlawful discrimination is raised once the plaintiff establishes a prima facie case by a preponderance of the evidence.13 The defendant then may
Applying this analysis, Klein can avoid summary judgment if the evidence, taken as a whole, creates a fact issue about A & P’s stated reason for Klein’s discharge, and permits of a reasonable inference that age or disability was a determinative factor therein. A & P is entitled to summary judgment if the evidence, taken as a whole, would not allow a jury to infer that the actual reason for the discharge was discriminatory.
A & P has offered a legitimate, nondiscriminatory reason for firing Klein: the stores he managed failed to comply with its inventory shortage policy. In response Klein alleges that A & P discriminated against him because younger and healthier managers were not fired for similar failings. In such disparate treatment cases, the plaintiff must show that the statutorily protected trait actually motivated
Klein admitted in his deposition that his job had been in a precarious position because of bad inventories before his heart attack. The only evidence presented to show discrimination is Klein’s statement that he was fired because of his age and perceived disability. Such evidence, by itself, is not sufficient to present a triable issue in the face of proof of an adequate, nondiscriminatory reason for the discharge.17 We agree with the district court that summary judgment was appropriate.
Dismissal of Motion to Compel.
In light of the foregoing, we perceive no abuse of discretion in the trial court’s ruling on Klein’s motion to compel discovery.18
The judgment of the district court is AFFIRMED.