Revised February 12, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
Nos. 99-50742 ___________________________
ARTURO P. MEDINA,
Plaintiff-Appellant,
v.
RAMSEY STEEL COMPANY, INC. AND DOUG RAMSEY, JR.,
Defendants-Appellees,
__________________
No. 99-51171 __________________
Plaintiff-Appellee,
Defendants-Appellants.
__________________________________________________
Appeals from the United States District Court for the Western District of Texas __________________________________________________
January 29, 2001
Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
1 Arturo P. Medina brought suit against his employer Ramsey
Steel Company, Inc. (“Ramsey Steel”) and Doug Ramsey, an employee
of the corporation, alleging that they refused to promote him
because of his age and terminated him in retaliation for
complaining of age discrimination. Medina began working for
Ramsey Steel in 1968 when he was thirty-two years of age. Six
years later, he left Ramsey steel in search of other career
opportunities which included a job selling real estate for a
Century 21 franchise. In 1978, Medina returned to Ramsey Steel
and worked as a detailer just as he had prior to leaving the
company. A detailer prepares shop drawings for the steel
components that Ramsey Steel sells to its customers.
Although Medina worked as a detailer for the balance of his
employ at Ramsey Steel, from 1978 to 1994, he sought promotions
on three occasions. A few years after his return to Ramsey
Steel, Medina expressed interest in an outside sales position.
Although Ramsey Steel never officially stated that the position
was open, Ramsey Steel awarded the job to Joe Menchey, a man
twenty-five years Medina’s junior. Sometime in 1989 or 1990,
Menchey resigned and Medina again expressed interest in the
outside sales position. According to Medina, Ramsey Steel’s
president, Greg Ramsey, told him that he did not have the right
“ingredients” for the job. After offering the job to an employee
who declined it, the position remained open for several years
2 until Ramsey Steel hired Fred Chavarria, a man twenty-five years
Medina’s junior.
During the time that the outside sales position was vacant,
Ismael Legarreta, an Assistant Vice-President at Ramsey Steel,
held a meeting to discuss the newly created lead detailer
position. Medina claims that during this meeting the issue of
productivity arose and that Lupe de la Cruz believed that the
solution was to “get rid of all the old people.” De la Cruz
received no reprimand for this comment and, in fact, was promoted
to the new lead detailer position. Ramsey Steel claims that
Medina never applied for the lead detailer position but Medina
says that Legarreta told him and other detailers that they would
all be considered for the position.
After he was passed over for the lead detailer position,
Medina began complaining about age discrimination to his fellow
workers. Medina contends that prior to these complaints, his
personnel record contained only one complaint about his work.
After he complained, Medina’s supervisors entered at least eight
complaints in his personnel file, and, on November 22, 1993, Doug
Ramsey placed him on probation for ninety days.
On December 3, 1993, Medina mailed a charge to the Texas
Commission on Human Rights (“TCHR”) alleging age discrimination.
Medina amended this charge on December 7, 1993. The Equal
Employment Opportunity Commission (“EEOC”) received notice of the
3 charge on December 20, 1993. According to Medina, in February of
1994, he attended a meeting at which Ismael Legarreta told Medina
about Ramsey Steel’s chain of command and then said, “I don’t
care if you have been with the company five years or fifty years.
And I don’t care if you sue me or take me to court. It’s going
to be hard for you to collect.” Doug Ramsey, one of Medina’s
supervisors, terminated him and memorialized the decision in a
memorandum dated March 10, 1994.
On November 29, 1994, Medina filed his Original Petition in
state court alleging discriminatory non-promotion and retaliatory
discharge under Chapter 21 of the Texas Labor Code. Ramsey Steel
and Doug Ramsey removed the action to federal court claiming that
it was preempted by the Federal Age Discrimination in Employment
Act (“ADEA”). The federal court remanded the case to the state
court on February 2, 1995.
After an initial trial setting and the granting of two
continuances, the case sat idle for thirty-three months until it
was transferred to another judge who set it for trial on May 10,
1999. In May of 1999, Medina amended his petition to assert a
claim for back pay and liquidated damages. After this amendment,
Ramsey Steel and Doug Ramsey removed the case to federal court
which immediately scheduled the case for trial on July 26, 1999.
Medina moved to remand the action back to state court and the
federal district court denied the motion. On July 27, 1999, the
4 district court granted Ramsey Steel’s and Doug Ramsey’s motion
for summary judgment on all of Medina’s claims.
The district court held that Medina failed to raise a fact
issue on whether he was qualified for the outside salesman
position. As to the lead detailer position, the district court
held that Medina failed to carry his ultimate burden of
demonstrating that the failure to promote was based on Medina’s
age. In granting summary judgment on Medina’s retaliation claim,
the district court held that Medina had failed to establish that
his complaints of age discrimination were the cause of his
termination. Medina also appeals the district court’s denial of
his motion to remand to state court. Ramsey Steel appeals the
district court’s denial of its motion for attorney’s fees.
Because they relate to the same set of facts, we consolidated the
appeals.
I.
The district court denied Medina’s motion to remand this
case to state court. Medina argues that remand was appropriate
because his original pleadings alleged discrimination and
retaliation under Texas law only. However, Medina seeks
unlimited back pay and liquidated damages. We review de novo the
denial of a motion to remand. See Carpenter v. Wichita Falls
Indep. Sch. Dist., 44 F.3d 362, 365(5th Cir. 1995).
5 The plaintiff is “the master of her complaint,” and, as
such, “[a] determination that a cause of action presents a
federal question depends upon the allegations of the plaintiff’s
well-pleaded complaint.” Id. at 366. When a plaintiff has a
choice between federal and state law claims, she may proceed in
state court “on the exclusive basis of state law, thus defeating
the defendant’s opportunity to remove.” Id. (emphasis added).
Thus, to support removal, the defendant must show that a federal
right is an essential element of the plaintiff’s cause of action.
See id.
Medina’s amended pleadings seek back pay and liquidated
damages as provided under the ADEA. See 29 U.S.C. § 626(b).
Texas law caps lost earnings at two years and does not provide
for the award of liquidated damages. TEX. LAB. CODE ANN. §
21.258(c)(Vernon 1996). From the face of Medina’s well-pleaded
complaint, it is clear that Medina is not proceeding on the
exclusive basis of state law. Instead, the damages he seeks are
authorized only by federal law. See id.; 29 U.S.C. § 626(b).
Therefore, the district court’s denial of Medina’s motion to
remand was appropriate.
II.
Medina’s age discrimination claims are based on the fact
that he was passed over for promotion on three separate
occasions. The district court granted summary judgment against
6 Medina on these claims. We review a district court’s grant of
summary judgment de novo. See Bodenheimer v. PPG Indus., Inc., 5
F.3d 955, 956(5th Cir. 1993). As to Medina’s age discrimination
claims, we reverse.
A.
Two of Medina’s three age discrimination claims are based on
Ramsey Steel twice passing him over for promotion to outside
salesperson. The district court granted summary judgment against
Medina on the ground that he failed to raise a genuine issue of
material fact as to whether he was qualified for the position in
that he did not demonstrate how he met Ramsey Steel’s
“substantial sales experience” requirement.
We analyze employment discrimination claims under a three-
step, burden-shifting framework.1 See Lindsey v. Prive Corp.,
987 F.2d 324, 326(5th Cir. 1993). First, the employee must raise
a genuine issue of material fact as to each element of his prima
facie case. See id. Then, the employer must articulate a
legitimate, nondiscriminatory reason for its employment decision.
See id. Finally, the employee must raise a genuine issue of
material fact as to whether the employer’s proffered reason was
merely a pretext for age discrimination. See id.
1 Texas courts also apply this three-step analysis to age discrimination cases. See Farrington v. Sysco Food Serv., Inc., 865 S.W.2d 247, 251(Tex. App.–Houston[1st] 1993, writ denied).
7 The first issue for our discussion is whether Medina has
raised a genuine issue of material fact as to each element of his
prima facie case. In an age discrimination, failure to promote
case, the employee must demonstrate that 1) he belongs to the
protected class, 2) he applied to and was qualified for a
position for which applicants were being sought, 3) he was
rejected, and 4) another applicant not belonging to the protected
class was hired. See id. at 326-27.
It is undisputed that Medina is within the protected class,
that he sought promotion to the job, that Ramsey Steel rejected
him, and that individuals not within the protected class filled
the outside sales position both times it came open. The focus of
Ramsey Steel’s attack on Medina’s prima facie case, and the basis
for the district court’s grant of summary judgment, is that
Medina is unqualified for the outside sales position because he
failed to meet the “substantial sales experience” requirement.
This was the only qualification Ramsey gave for the position; so,
the crucial, central issue is whether an employer can defeat an
employee’s claim via summary judgment at the prima facie case
stage by claiming that he failed to meet entirely subjective
hiring criteria. We do not think so.
While subjective criteria like that set forth by Ramsey
Steel “may serve legitimate functions, they also provide
opportunities for unlawful discrimination” because the criteria
8 itself may be pretext for age discrimination. Id. at 327. As we
have indicated before, an employer may not “utilize wholly
subjective standards by which to judge its employees’
qualifications and then plead lack of qualification when its
promotion process . . . is challenged as discriminatory.”
Crawford v. Western Elec. Co., 614 F.2d 1300, 1315(5th Cir.
1980).
For these reasons, other circuits have concluded that a
prima facie case is established once the plaintiff demonstrates
that objective employment qualifications have been met. See
Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135(7th Cir.
1985); Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339,
342(10th Cir. 1982); Lynn v. Regents of the University of
California, 656 F.2d 1337, 1344(9th Cir. 1981). For example, in
Burrus v. United Telephone Co. of Kansas, Inc., the Tenth Circuit
concluded that objective qualifications are best treated at the
first step of the analytical framework and that subjective
criteria and other supporting evidence are best treated at the
second and third steps. Burrus, 683 F.2d at 342. If a failure
to satisfy subjective hiring criteria could defeat an employee’s
prima facie case, “the court then would not be required to
consider evidence of pretext.” Id. “Thus the use of the
subjective hiring criteria would go unchallenged.” Id. This
result would “collapse the analysis into a single initial step at
9 which all issues would be resolved.” Id. For these reasons, it
is inappropriate to decide as a matter of law than an employee is
unqualified because he has failed to meet entirely subjective
hiring criteria. See Lindsey v. Prive Corp., 987 F.2d 324,
327(5th Cir. 1993). Instead, an employee must demonstrate that
he meets objective hiring criteria at the prima facie case stage,
and the issue of whether he meets subjective hiring criteria is
dealt with at the later stages of the analysis. See id.; Burrus,
683 F.2d at 342.
Another reason for this approach is to prevent the judge
from making credibility determinations in the summary judgment
context. See Lindsey, 987 F.2d at 327-28. In Lindsey v. Prive
Corp., a gentlemen’s club failed to promote two waitresses to
dancers because they were not “beautiful, gorgeous, and
sophisticated.” Id. at 326. The waitresses sued the club
claiming age discrimination. See id. The district court granted
summary judgment in favor of the club on the ground that the
waitresses had failed to meet its subjective hiring criteria. In
reversing the district court’s decision, we acknowledged that an
employer can make employment decisions based on subjective
criteria. See id. at 328. However, we also said that
distinguishing legitimate employment decisions based entirely on
subjective criteria and those in which subjective criteria serve
as pretext for discrimination can only be made by weighing the
10 employer’s credibility. See id. at 327-28. “Beauty is in the
eye of the beholder and the beholder in this case” is the
employer, but the “question left for the judge or jury will not
require second guessing of the [club’s] personnel decisions but,
rather, will require an evaluation of the credibility of the
defendant’s testimony about the reasons for that decision.” Id.
at 328. In short, “the trier-of fact will evaluate truthfulness,
not beauty.” Id.
Similarly, what constitutes “substantial sales experience”
is in the eye of the beholder. While Ramsey Steel is the
beholder, it is the trier-of-fact’s duty to determine whether
Ramsey Steel beheld a man it felt was unqualified for the job or
a man it felt was too old for the job. Because Ramsey Steel’s
hiring criterion was entirely subjective, Medina’s claims could
not be defeated on summary judgment at the prima facie case
stage.
Thus, the burden shifted to Ramsey Steel to articulate a
legitimate, non-discriminatory reason for its decision. See id.
at 326. Ramsey Steel asserted that Medina is not qualified for
the job so the burden shifted to Medina to produce evidence
raising a fact issue as to whether Ramsey Steel’s reason was
pretextual. A review of the record demonstrates that Medina has
done so.
11 Medina offered evidence that he had experience selling real
estate for Century 21. He also offered evidence that he had more
sales experience and more experience in the industry than the
individual promoted over him. When he expressed interest in the
job, Medina claims the company president told him that he did not
have the right “ingredients” rather than saying he was
unqualified. Finally, Medina offered evidence that, near the
time Medina was passed over in favor of a younger man, Lupe de la
Cruz told the Assistant Vice-President, Ismael Legarreta, that he
should “get rid of all the old people.” Medina has offered
evidence that Legarreta was involved in hiring decisions and that
he made no response to De la Cruz’s remark. All of this evidence
raises a genuine issue of material fact as to whether Ramsey
Steel’s proffered reason for failing to promote Medina was merely
a pretext for age discrimination. Therefore, the district
court’s decision to grant summary judgment against Medina was
inappropriate.
B.
The district court granted summary judgment against Medina
on his claim that Ramsey Steel failed to promote him to the lead
detailer position because of his age. The district court held
that Medina had failed to raise a genuine issue of material fact
as to his ultimate burden of demonstrating age discrimination.
We disagree.
12 Again, in a failure to promote case, the employee has the
initial burden to satisfy his prima facie case by showing that 1)
he belongs to the protected class, 2) he applied to and was
qualified for a position for which applicants were being sought,
3) he was rejected, and 4) another applicant not belonging to the
protected class was hired. See id. at 326-27. The burden then
shifts, and the employer must articulate a legitimate,
nondiscriminatory reason for its decision. See id. at 326.
Finally, the employee must show that the employer’s proffered
reason is merely a pretext for age discrimination. See id.
Medina has raised a genuine issue of fact with respect to
his prima facie case. It is undisputed that Medina belongs to
the protected class, that he was passed over for promotion, and
that someone not within the protected class was hired. Further,
Ramsey Steel does not argue that Medina was unqualified for the
lead detailer position. Ramsey Steel attacks Medina’s prima
facie case by contending that Medina failed to apply for the job
of lead detailer by writing his name on a bulletin board sign-up
sheet. While Ramsey Steel has proffered evidence to this effect,
Medina has countered with evidence that the Assistant Vice-
President of the Company, Ismael Legarreta, held a meeting in
April of 1993 in which he told Medina and other detailers that
they would all be considered for the position without having to
sign on the sign-up sheet. Therefore, Medina has raised a fact
13 issue as to whether he applied for the job and thus has met his
burden at the prima facie case step of the analysis.
To satisfy its burden of articulating a legitimate,
nondiscriminatory reason for failing to promote Medina, Ramsey
Steel asserted that Medina would have been turned down for the
position because of poor performance. The burden then shifted to
Medina to show that Ramsey Steel’s proffered reason was merely a
pretext for discrimination. See id. To meet this burden, Medina
pointed to the fact that the evidence Ramsey Steel cites to
support its proffered reason for not promoting Medina relates to
incidents of poor performance that occurred after the hiring
decision was made. In fact, the district court stated that
Ramsey Steel’s legitimate, nondiscriminatory reason “fails” for
the same reason. Medina also offered evidence that he was a more
experienced detailer than the man actually hired, Lupe De la
Cruz.
Medina had twenty-one years of experience with the company,
eighteen of which were as a detailer, while De la Cruz was only
twenty-two or twenty-three years old, with far less detailing
experience. Finally, Medina offered evidence that De la Cruz
told Legarreta that the solution to the company’s productivity
problems was to “get rid of all the old people.” According to
Medina, Legarreta did not reprimand De la Cruz for this remark or
respond to it in any way. In fact, De la Cruz was promoted to
14 the position of lead detailer. Despite this evidence of pretext,
the district court granted summary judgment on the ground that
Medina had failed to raise a genuine issue of material fact as to
his ultimate burden of proving age discrimination.
Remarks may serve as sufficient evidence of age
discrimination if they are: 1) age related, 2) proximate in time
to the employment decision, 3) made by an individual with
authority over the employment decision at issue, and 4) related
to the employment decision at issue. See Brown v. CSC Logic,
Inc., 82 F.2d 651, 655-56(5th Cir. 1996). Here, De la Cruz’s
comment was clearly age related, was made when the lead detailer
opening was announced and being discussed, and related to the
lead detailer promotion decision. Ramsey Steel argues, however,
that, since De la Cruz is not an individual with authority over
employment decisions, the comment is not sufficient evidence of
age discrimination to allow Medina to survive summary judgment.
While it is true that De la Cruz did not have hiring authority,
this fact is not necessarily lethal to Medina’s claim.
For example, in Haas v. ADVO Systems, Inc., the plaintiff
applied for a sales manager job and had an interview with the
defendant’s Vice-President for Sales. 168 F.3d 732, 732(5th Cir.
1999). During this interview, the Vice-President told the
plaintiff that his only concern about hiring him was his age.
See id. at 733. The Vice-President for Sales then recommended
15 that the Regional Vice-President not hire the plaintiff. See id.
This was the only evidence of age discrimination the plaintiff
offered in Haas. Id. Although the ultimate hiring authority
rested with the Regional Vice-President and not the Vice-
President for Sales who made the age based comment, we held that
the comment precluded summary judgment. See id. at 733-34. In
order to grant summary judgment after such a comment is made, we
would have had to infer that the comment was inconsequential to
the decision of the person with ultimate hiring authority. See
id. at 733. In the summary judgment context, we are not
permitted to draw such an inference. See id.
As in Haas, to grant summary judgment in this case we must
infer from this evidence that De la Cruz’s comment was
inconsequential to Legarreta’s hiring decision despite the fact
that he was silent in response to it. This is an inference we
cannot draw as we must make all inferences in favor of the
nonmovant, Medina. Therefore, summary judgment on Medina’s claim
of age discrimination based on a failure to promote him to the
position of lead detailer was inappropriate.
III.
Medina claims that he was unlawfully terminated in
retaliation for opposing Ramsey Steel’s discriminatory practices.
The district court granted summary judgment on Medina’s unlawful
retaliation claim on the ground that Medina had failed to raise a
16 genuine issue of fact as to whether his protected conduct was a
cause-in-fact of his termination. We disagree.
The analytical framework for a retaliation claim is the same
as that used in the employment discrimination context.2 See
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122(5th Cir.
1998). Thus, once the plaintiff establishes a prima facie case
of unlawful retaliation, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the adverse
employment action. See id. Then, the plaintiff must adduce
evidence “that would permit a reasonable trier or fact to find
that the proffered reason is a pretext for retaliation.” Id.
This burden requires the plaintiff to demonstrate that the
adverse employment action would not have occurred “but for” the
protected activity. See id.
A plaintiff establishes a prima facie case of unlawful
retaliation by demonstrating 1) he engaged in protected activity,
2) he suffered an adverse employment decision, and 3) a causal
link exists between the protected activity and the adverse
employment decision. See Long v. Eastfield College, 88 F.3d 300,
2 Texas courts have articulated the same elements for establishing a prima facie case of retaliation as federal courts. See Cox & Smith, Inc. v. Cook, 974 S.W.2d 217, 223(Tex. App.–San Antonio 1998, pet. denied). Texas courts have not fleshed out the remaining steps of the analysis but have said that they would look to interpretation of federal civil rights law in doing so. See Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312, 315 n.2(Tex. App.–Austin 1997, writ denied).
17 305 n.4(5th Cir. 1996). Ramsey Steel concedes that Medina was
engaged in protected activity and that he suffered an adverse
employment decision in that he was terminated on March 10, 1994.
However, Ramsey Steel attacks Medina’s prima facie case by
asserting that he has failed to establish a “causal link” between
the protected activity and the termination.
A “causal link” is established when the evidence
demonstrates that “the employer’s decision to terminate was based
in part on knowledge of the employee’s protected activity.”
Sherrod, 132 F.3d at 1122. The Eleventh Circuit has held that
the “causal link” element is satisfied when the plaintiff shows
that the employment decision and his protected activity “were not
wholly unrelated. Simmons v. Camden County Bd. of Educ., 757
F.2d 1187, 1189(11th Cir. 1985). Doug Ramsey is the Ramsey Steel
employee who terminated Medina. He memorialized his decision in
a handwritten note dated March 10, 1994. It is clear that Doug
Ramsey knew about Medina’s complaint to the TCHR because he sent
a response to Medina’s complaint to the TCHR dated January 5,
1994. This evidence is sufficient to demonstrate that Doug
Ramsey’s knowledge of the complaint and that the two were not
wholly unrelated. Therefore, Medina has met the “causal link”
element of his prima facie case.
The burden of production now shifts to Ramsey Steel to
articulate a legitimate, nondiscriminatory reason for its
18 termination of Medina. See Long, 88 F.3d at 305. This burden is
satisfied by introducing evidence which, if true, would permit
the trier-of-fact to conclude that the termination was
nondiscriminatory. See id. Ramsey Steel asserts that Medina was
terminated because of his poor work performance and supports this
assertion with evidence of numerous instances of poor work
performance as documented in Medina’s personnel file. Therefore,
Ramsey Steel has satisfied its burden of articulating a
legitimate, nondiscriminatory reason for terminating Medina.
Finally, Medina has the burden to adduce evidence that
Ramsey Steel’s proffered reason for his termination was merely a
pretext for age discrimination. See Sherrod, 132 F.3d at 1122.
To meet this burden, Medina must demonstrate that he would not
have been terminated “but for” engaging in protected activity.
See id. at 1123. While this portion of the analysis may seem
identical to the “causal link” step in the prima facie case, the
burden here is more stringent. See McMillan v. Rust Coll., Inc.,
710 F.2d 1112, 1116-1117(5th Cir. 1983). The plaintiff must
reveal “a conflict in substantial evidence on the ultimate issue
of retaliation in order to withstand a motion for summary
judgment.” Sherrod, 132 F.3d at 1122.
In Long v. Eastfield College, the plaintiffs sued their
employer for retaliatory discharge in violation of Title VII. 88
F.3d 300, 304(5th Cir. 1996). One of the plaintiffs introduced
19 evidence that her performance evaluations never fell below
“exceeds” until after she complained to her employer about
another employee’s harassing conduct. See id. at 308. She also
introduced evidence that no other employee had been terminated
for the reason her employer said she was terminated. See id. We
held that such evidence was sufficient to raise a genuine issue
of fact as to whether the employer retaliated against its
employees for engaging in protected activity. See id. at 309.
Similarly, Medina offered evidence that his work evaluations
changed dramatically after he began complaining about what he
believed to be age discrimination. In June of 1993, Medina told
fellow employees that the promotion of two younger employees over
him constituted age discrimination. Up to that point, Medina had
only one criticism in his personnel record in more than twenty
years of work with the company. In the following few months,
various officers of Ramsey Steel placed between eight and ten
uncomplimentary memos in his file, and, on November 22, 1993,
Doug Ramsey placed Medina on ninety days probation.
The record does not clearly indicate when Doug Ramsey and
other Ramsey Steel officials learned of Medina’s age
discrimination complaints. However, it is clear that Doug Ramsey
knew of Medina’s formal complaint to the TCHR as of January 5,
1994 because he sent the TCHR a response on that date. After
January 5, 1994, Ramsey Steel officials continued to place
20 criticisms in Medina’s file. Medina also offered evidence that
he attended a meeting in which Ismael Legarreta, Ramsey Steel’s
Assistant Vice-President and Medina’s supervisor, said “I don’t
care if you have been with the company five years or fifty years.
And I don’t care if you sue me or take me to court. It’s going
to be hard for you to collect.”
Ramsey Steel vigorously disputes this evidence and the
inferences Medina draws from it. Nevertheless, there is a “a
conflict in substantial evidence on the ultimate issue of
retaliation.” Sherrod, 132 F.3d at 1122. Medina has raised a
genuine issue of material fact as to whether Ramsey Steel
unlawfully retaliated against him. Therefore, summary judgment
on Medina’s unlawful retaliation claim was inappropriate.
IV.
on his claims against Doug Ramsey, one of his supervisors at the
time of the alleged discriminatory acts. Medina urges this court
to hold Doug Ramsey individually liable for age discrimination.
We decline to do so.
The Texas Labor Code authorizes suits to remedy age
discrimination against “employers.” See TEX. LAB. CODE ANN. §§
21.002, 21.051(8). However, supervisors and managers are not
considered employers under the Texas Labor Code and, therefore,
are not individually liable for age discrimination. See
21 Benavides v. Moore, 848 S.W.2d 190, 198(Tex. App.–Corpus 1992,
writ denied). Similarly, the ADEA authorizes suits against
employers for age discrimination. See 29 U.S.C. § 623(a).
Likewise, the ADEA “provides no basis for individual liability
for supervisory employees.” Stults v. Conoco, Inc., 76 F.3d 651,
655(5th Cir. 1996). Therefore, summary judgment on Medina’s
claims against Doug Ramsey was appropriate.
The district court denied Ramsey Steel’s and Doug Ramsey’s
motion for attorney’s fees and costs. We review this decision
for an abuse of discretion. See EEOC v. Tarrant Dist., Inc., 750
F.2d 1249, 1251(5th Cir. 1984). Ramsey Steel and Doug Ramsey
argue that they are entitled to attorney’s fees and costs because
Medina’s claims are frivolous and because he litigated his case
in bad faith. Having found that at least some of Medina’s claims
are sufficient to survive summary judgment, it cannot be said
that his claims were frivolous or that he litigated in bad faith.
Therefore, we find no abuse of discretion in the district court’s
decision to deny an award of attorney’s fees and costs.
CONCLUSION
The district court did not err by denying Medina’s motion to
remand to state court because his cause of action included a
claim for damages available only under federal law. The district
court did not err by granting summary judgment in favor of Doug
22 Ramsey because he is not an employer under the Texas Labor Code
or under the ADEA. However, genuine issues of material fact
exist as to whether Ramsey Steel discriminated against Medina
because of his age and whether Ramsey Steel terminated him in
retaliation for engaging in protected activity. Since Medina’s
claim was not frivolous or brought in bad faith, the district
court did not abuse its discretion by denying Ramsey Steel’s and
Doug Ramsey’s motion for attorney’s fees and costs. Accordingly,
we AFFIRM IN PART, REVERSE IN PART, and REMAND for further
proceedings consistent with this opinion.