Mayes v. Kelly Services Inc, et al

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 13, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 04-10321
Summary Calendar
C. ROGER MAYES,
Plaintiff-Appellant,
VERSUS
KELLY SERVICE, INC.; ONSTAR CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth Division
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant C. Roger Mayes (“Mayes”), a man born on December 21,
1940, brought suit in Texas state court against Appellees Kelly
Services, Inc. (“Kelly”) and Onstar Corporation (“Onstar”),
alleging violations of the Texas Commission on Human Rights
(“TCHR”) Act, TEX. LAB. CODE ANN. ch. 21 (Vernon 1996 & Supp. 2004),
and Title VII. Defendants removed the cause of action on the basis

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1Mayes does not contest this construction.
2
of both diversity and federal question jurisdiction, and the
district court construed Mayes’s reference to Title VII in his
original complaint as a claim arising instead under the Age
Discrimination and Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”).1
Mayes claimed he was employed by both Onstar and Kelly and
that he was originally employed in 1998 at the age of fifty-seven
years. Onstar objected, claiming Mayes had always been the
employee of Kelly, or its predecessors, throughout his relationship
with Onstar as a sales manager. At the inception of his
relationship with Kelly, Mayes entered several agreements,
including an agreement that Kelly was his employer. The contract
provided that while assigned to other entities on a temporary
basis, Mayes remained an employee of Kelly alone. It is by virtue
of this agreement that Mayes was employed by Kelly but provided
services to Onstar. Also, Mayes agreed that upon termination of a
temporary assignment he should contact Kelly for another assignment
and that failure to do so would indicate that he voluntarily quit
or was not actively seeking work.
In 2002, when Mayes was sixty-one years old, Kelly informed
Mayes that Onstar was dissatisfied with Mayes’s performance and
requested he be removed from the assignment. At that time, Mayes
could have, but did not, requested reassignment to a new position
with Kelly.

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3
After initial proceedings and adequate discovery, Kelly and
Onstar filed motions for summary judgment. On February 11, 2004,
the district court granted defendants’ motions on the grounds that
(1) Onstar was not Mayes’s employer; (2) Mayes failed to present a
prima facie case of age discrimination; and (3) even assuming a
prima facie case was presented, defendants produced a legitimate,
nondiscriminatory basis for removing Mayes from work
responsibilities, and Mayes failed to present evidence that their
proffered reasons were pretext for unlawful discrimination.
We review a district court’s grant of summary judgment de
novo. Young v. Equifax Credit Info. Servs. Inc., 294 F.3d 631, 635
(5th Cir. 2002). We have reviewed the briefs and record excerpts,
as well as relevant portions of the record. We AFFIRM the district
court’s granting of summary judgment for the reasons articulated in
its memorandum opinion and order filed February 11, 2004.
AFFIRMED.

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