UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 98-40875 Summary Calendar _______________________

JOHN ARAMBULA,

Plaintiff-Appellant,

versus

CITY OF LAREDO; CARLOS VILLARREAL; FLORENCIA PENA,

Defendants-Appellees.

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Appeal from the United States District Court for the Southern District of Texas (L-96-CV-112) _________________________________________________________________

June 2, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

John Arambula brought age discrimination and other claims

stemming from his turbulent last six months as the Risk Manager for

the City of Laredo in 1994-95. The district court granted summary

judgment for the defendants. Agreeing that no genuine issue of

material facts exists, we affirm.

For his first two years as Laredo’s Risk Manager,

Arambula received relatively positive job evaluations. Things

changed, however, when Defendant-Appellee Peña became the new

* Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. Director of Administrative Services -- and Arambula’s new

supervisor -- in September 1994. Although Peña approved a merit

pay raise for Arambula in November (based mostly upon Arambula’s

work for Peña’s predecessors), Arambula was terminated in March

1995.

The six-month overlap in Arambula’s and Peña’s tenures

was dominated by rancor; Arambula’s complaint to the Texas

Commission on Human Rights used 45 single-spaced pages to describe

approximately 80 incidents between them. Arambula’s appellate

brief quotes extensively from the numerous memos he sent to Peña

and the city manager about his feelings of being “oppress[ed] and

harass[ed]” by Peña’s “antagonistic” pattern of “berating,

embarrassing and demeaning” behavior toward Arambula and others.

In response to Arambula’s prima facie case of age

discrimination -- he was replaced by a younger worker -- the

defendants argued that Arambula was, “[i]n general, ... terminated

for insubordination, confrontations with co-workers and

supervisors, substandard work, substandard work performance, and a

complete lack of confidence by his supervisors that he could

perform the essential functions of his job.” The district court

granted summary judgment to the defendants because Arambula did not

produce evidence of pretext or of direct age discrimination to

refute the employer’s proffered reasons for the termination.

On appeal, Arambula argues that his and Peña’s stories

differed on the details of several incidents and who was to blame

for them. He contends that these differences justify a denial of

2 summary judgment under Bienkowski v. American Airlines, Inc..1 In

that case, this court found that sharply opposed accounts from the

employee and his supervisors raised questions of fact about

motivation that were “barely sufficient to create a jury issue.”2

Bienkowski, however, is factually distinguishable because it

involved no claims of serious mutual animosity like those before

us, and there was some evidence of age-material conduct.

It is clear in this circuit that “if the evidence put

forth by the plaintiff to rebut the employer’s reasons is not

substantial, a jury cannot reasonably infer discriminatory

intent.”3 Moreover, the plaintiff must prove not “only that the

defendant’s proffered reason is pretextual,” but also that

“‘discrimination was the real reason.’”4 Arambula is simply wrong

in his assertion on appeal that, “as a matter of law,” the

defendants “assumed the burden of conclusively establishing

nondiscriminatory motivation.”

Taken as a whole, the record does not include substantial

evidence that the defendants’ proffered reasons -- including the

well-documented difficulties in Arambula and Peña’s relationship --

were not the true reason for Arambula’s termination. Nor, as the

district judge correctly observed, does Arambula’s contention that

1

(5th Cir. 1988) 2

. 3 Bennett v. Total Minatome Corp.,

(5th Cir. 1998). 4 Walton v. Bisco Indus., Inc.,

(5th Cir. 1997) (quoting St. Mary’s, 509 U.S. at 515, 113 S. Ct. at 2751).

3 Peña was often in the wrong in their disputes suffice to meet his

further burden of proving that discrimination was the real

motivating factor. Arambula presents a couple of age-related

comments by Peña, but they are stray remarks, apart from which

there is no evidence that Peña’s dislike for Arambula was “in any

way connected to [Arambula’s] age.”5

The district court correctly granted summary judgment in

favor of the defendants on Arambula’s age discrimination claims.

In addition, for essentially the reasons stated in the

district court’s comprehensive opinion, we affirm summary judgment

in favor of the defendants on Arambula’s state law claims for

workers compensation retaliation, intentional infliction of

emotional distress (against both the City and Peña), and libel and

slander.

AFFIRMED.

5 Waggoner v. City of Garland,

(5th Cir. 1993). In fact, in one of the allegedly hostile comments, Peña called Arambula a “joto raton [snitching queer],” which evinces nothing about age.

4