UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50154 Summary Calendar

GEORGE SAUER,

Plaintiff-Appellant,

versus

ICI PAINTS IN NORTH AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas USDC No. SA-98-CA-29-OG

October 20, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

This is an age discrimination case. Appellant George

Sauer seeks a reversal of the district court’s adoption of the

Magistrate Judge's grant of summary judgment in favor of Appellee

ICI Paints. Sauer also appeals the district court’s affirmance of

the Magistrate Judge's order denying his motion to compel discovery

as untimely filed. We affirm.

We review the district court’s grant of summary judgment de

novo. See John Deere Ins. Co. v. Trucking USA,

(5th Cir. 1997). We review the district court’s enforcement of its

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. scheduling order for abuse of discretion. See Rushing v. Kansas

City Ry. Co., No. 98-60590,

(5th Cir. August

30, 1999)

A plaintiff must prove the following to make a prima facie

case of discriminatory discharge on the basis of age: (1) that he

is a member of the protected class; (2) the he was discharged; (3)

the he was qualified for the position he held; and (4) that he was

replaced by someone younger than he or otherwise discharged because

of his age. See Dow v. CFC Logic, Inc.,

(5th Cir.

1996). Sauer proved a prima facie case of age discrimination.

Sauer was sixty four years of age at the time of his termination in

August, 1997. Sauer was employed as a Major Market Manager with

ICI Paints, overseeing four stores in the San Antonio area, and he

had thirty years of experience working for ICI and the two previous

owners of the company. Sauer’s duties were assumed by his superior

Butch Rivers, Regional Manager for ICI, who was fifty four years of

age when Sauer’s position was eliminated.

Once a plaintiff proves a prima facie case of age

discrimination, the defendant must offer a legitimate,

nondiscriminatory reason for its employment decision, which the

plaintiff may rebut by proving that the proffered reason is pretext

for discrimination. See St. Mary’s Honor Center v. Hicks,

(1993). ICI offered a legitimate, nondiscriminatory

reason for eliminating Sauer’s position: to improve the efficiency

of its operations by eliminating a mid-level management position

2 and transferring the duties of that position to a more senior

manager.

Sauer offered as evidence of pretext comments at company

meetings that he was a “senior citizen,” but he could not recall

who made these remarks. Stray remarks are not sufficient to prove

age discrimination. See Price v. Marathon Cheese Corp.,

(5th Cir. 1997). Sauer also offered as evidence of pretext

that Rivers resigned months later, and the duties of his position

were assigned to two other employees, both younger than Sauer.

Rivers’ deposition testimony showed that he retired because he was

unhappy with ICI’s business policies, and that ICI did not want him

to retire. As Sauer’s duties were assumed by Rivers at the time of

Sauer’s discharge, and Rivers’ retirement was not part of an ICI

reorganization, the subsequent employment actions are not pertinent

to Sauer’s age discrimination claim.1 Sauer failed to offer

evidence of pretext sufficient to create a genuine issue of

material fact with respect to his age discrimination claim. The

district court properly granted ICI’s motion for summary judgment.

Sauer appeals the district court’s affirmance of the

Magistrate Judge’s order denying Sauer’s motion to compel

discovery. Sauer served a request for documents October 1, 1998,

and the discovery deadline was set for October 23, 1998. The

1 In a reduction-in-force case, the plaintiff must present evidence that age was not a neutral factor in its decisions. See Armendariz v. Pinkerton Tobacco Co.,

(5th Cir.), cert. denied,

(1996). Sauer argues that Rivers' retirement and the transfer of his duties to two younger men was part of a reduction-in-force intended to replace older workers with younger ones. Rivers' deposition testimony belies that assertion.

3 Scheduling Order provided that the responding party was not

obligated to respond to written discovery if the response would be

due after the expiration of the discovery period. Hence ICI was

not obligated to respond. Further, the motion to compel was filed

November 6, 1998, and the deadline for motions relating to

discovery was October 23, 1998, the expiration of the discovery

period. Since Sauer’s motion was untimely filed, the district

court properly affirmed the Magistrate Judge’s order denying the

motion.

AFFIRMED

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