76 F.3d 651 (5th Cir. 1996), 95-10167, Stults v. Conoco, Inc.

Docket Nº:95-10167.
Citation:76 F.3d 651
Party Name:Rommie STULTS and Stephen Wallace, Plaintiffs-Appellants, v. CONOCO, INC. and Brad Burmaster, Defendants-Appellees.
Case Date:February 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 651

76 F.3d 651 (5th Cir. 1996)

Rommie STULTS and Stephen Wallace, Plaintiffs-Appellants,

v.

CONOCO, INC. and Brad Burmaster, Defendants-Appellees.

No. 95-10167.

United States Court of Appeals, Fifth Circuit

February 29, 1996

Page 652

[Copyrighted Material Omitted]

Page 653

David S. Jones, Stradley & Wright, Dallas, TX, Pamela M. Roach, Dallas, TX, for Rommie Stults, Stephen Wallace.

Page 654

Tonya Elise Chatton, E.I. DuPont de Nemours and Company, Houston, TX, for Conoco Inc.

Kenneth Royce Barrett, Michael Brett Burns, Akin, Gump, Strauss, Hauer and Feld, Dallas, TX, for Brad Burmaster.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS and PARKER, Circuit Judges, and BUNTON, District Judge. [*]

ROBERT M. PARKER, Circuit Judge:

Plaintiffs appeal the district court's granting of defendants' motions for summary judgment. Finding no error, we affirm.

I. FACTS

Plaintiffs Stults and Wallace were employees of Defendant Conoco, Inc. While employed by Conoco, plaintiffs each held the position of store manager. Plaintiff Stults was terminated on or around May 25, 1991 by his immediate supervisor, district manager Connie Lutton. Plaintiff Wallace resigned from his position with Conoco on or around July 14, 1992, after a meeting with his immediate supervisor, district manager Danise Chatham. At all relevant times, Lutton and Chatham were supervised by defendant Brad Burmaster, former regional retail operations manager for Conoco. Burmaster approved the decisions to terminate Stults and Wallace.

In November 1993, the plaintiffs filed this action for age discrimination and intentional infliction of emotional distress in the District Court of Tarrant County, Texas. 1 Defendant Conoco removed the action to U.S. District Court on the basis of federal question jurisdiction. Defendant Burmaster was served and made an appearance in the action subsequently.

On November 14, 1994, Burmaster filed a motion for summary judgment, asserting that he could not be held individually liable under the Age Discrimination in Employment Act ("ADEA"), and that there was no evidence of extreme and outrageous conduct or severe distress. On January 18, 1995, the district court entered an order granting Burmaster's motion for summary judgment in its entirety.

On December 8, 1994, Conoco filed a motion for summary judgment, asserting that plaintiffs were terminated for non-discriminatory reasons and that there was no evidence of pretext, and that there was no evidence of extreme and outrageous conduct or severe distress. On January 19, 1995, the district court entered an order granting Conoco's motion for summary judgment, noting that plaintiffs failed to file a response to Conoco's motion. Plaintiffs timely filed this appeal.

II. DISCUSSION

We review a district court's grant of summary judgment de novo, applying the same standard as did the district court. Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show 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). A "dispute about a material fact is 'genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For purposes of the summary judgment determination, all fact questions are viewed in the light most favorable to the nonmovant. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 532, 133 L.Ed.2d 438 (1995). But only materials which were included in the pretrial record and that would have been admissible

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evidence may be considered. See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Questions of law are always reviewed de novo. Gulf States Ins. Co. v. Alamo Carriage Serv., 22 F.3d 88, 90 (5th Cir.1994).

  1. AGE DISCRIMINATION IN EMPLOYMENT

    1. INDIVIDUAL LIABILITY UNDER THE ADEA

      The district court granted summary judgment in favor of Burmaster on plaintiffs' age discrimination claims, holding that the ADEA provides no basis for relief against supervisory personnel in their individual capacities. The plaintiffs contend that this holding was in error. We disagree.

      The ADEA makes it unlawful for an employer to discriminate against an individual on the basis of age. 29 U.S.C. § 623(a). Under the ADEA, the term "employer" means a person "engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...." 29 U.S.C. § 630(b). "Employer" also includes "any agent of such a person...." Id. The plaintiffs argue that the inclusion of the employer's agents in the definition of "employer"...

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