REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ANDREW W. AUSTIN, Magistrate Judge.
Before the Court are Defendant's Motion for Summary Judgment and Brief in Support (Dkt. No. 21); Defendant's Appendix in Support of its Motion for Summary Judgment (Dkt. No. 22); Plaintiff's Response to Defendant's Motion for Summary Judgment (Dkt. No. 23); Defendants' Reply Brief (Dkt. No. 25); and Plaintiff's Response to Defendant's Objections to Portions of Plaintiff's Summary Judgment Response Evidence (Dkt. No. 26). The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. FACTUAL BACKGROUND
Plaintiff Richard McMann ("McMann") filed the instant lawsuit in the 419th Judicial District Court for Travis County, Texas on August 21, 2012. In his Complaint, McMann alleges that Greystar discriminated against him on the basis of his age and Greystar's perception that he had a disability in violation of Chapter 21 of the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21, 001, et seq. (2006). Defendant Greystar timely removed Plaintiff's claims to federal court based on diversity jurisdiction. Greystar has now moved for Summary Judgment.
McMann is a 63-year-old man who was hired by Defendant in 2004 to be an Assistant Maintenance Technician at the Riverton at Davis Springs apartment complex. Plaintiff's Ex. 1 at 40:19-41:12. He was promoted to the position of Service Supervisor in or about 2006. Plaintiff's Ex. 1 at 41:17-25. McMann suffered a heart attack on August 10, 2011. Plaintiff's Ex. 1 at 31:3-9; Plaintiff's Ex. 4 at 11:3-5; 20:6-20. At the time, he was employed by Defendant Greystar Management Services, LP ("Greystar") under the management of Robert Leissner ("Leissner"). Ex. 5 at 57:16-58:14. McMann returned to work after approximately two to three weeks. Plaintiff's Ex. 1 at 31:14-32:5. McMann alleges that after his return Leissner and other employees repeatedly referred to him as "old man." Plaintiff's Ex. 1 at 50:10-23; 51:13-22. McMann also alleges that Leissner yelled at him, "Okay, old man, and don't give me this Alzheimer's bull shit" and that Leissner and the assistant manager, Nick Forte, made other comments regarding Alzheimer's to or about McMann. Plaintiff's Ex. 1 at 54:4-18; 52:18-53:3; 96:25-97:25. On October 15, 2011, McMann noticed that a trash cart had apparently been stolen from the Riverton at Davis Springs apartment complex. Plaintiff's Ex. 1 at 70:1-4. McMann met with Leissner the following Tuesday to discuss the missing trash cart. Plaintiff's Ex. 1 at 74:10-13. Katya Watson, the regional property manager, also attended the meeting. Plaintiff's Ex. 1 at 75:18-19. At the end of the meeting, McMann resigned. Plaintiff's Ex. 1 at 76:5-11; 77:12-25; Plaintiff's Ex. 5 at 122:17-23.
A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Moreover, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Greystar moves for summary judgment on the following grounds: (1) McMann cannot demonstrate a prima facie case of discrimination because: (a) he did not suffer an adverse employment action; (b) he is not disabled and there is no evidence that Greystar perceived him as disabled; and (c) he was not replaced by someone outside the protected age class; and (2) even if he can show a prima facie case of discrimination, Greystar had a legitimate non-discriminatory reason for any actions it took during McMann's employment.
B. Prima Facie Case of Discrimination
Under the analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973), to survive summary judgment, the "plaintiff... must put forth a prima facie case [of discrimination], at which point the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the employment decision." Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)). "If the employer articulates a legitimate, non-discriminatory reason for the employment decision, the plaintiff must then be afforded an opportunity to rebut the employer's purported explanation, to show that the reason given is merely pretextual." Id. ; Chambers v. Sodexo, Inc., 510 Fed.Appx. 336 (5th Cir. 2013) (stating that to avoid summary judgment, the employee must raise a genuine dispute of material fact as to whether the employer's stated reason was merely a pretext for discrimination). The ultimate burden of proving discrimination, however, remains with the plaintiff. Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
1. Age Discrimination Claim
Under the TCHRA, an employer commits "an unlawful employment practice" if because of "age the employer fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment." TEX. LAB. CODE ANN. § 21.051 (2006). "Claims of age discrimination under the ADEA and the Texas Commission on Human Rights Act are analyzed under the same analytical framework-the one announced in McDonnell Douglas Corp. v. Green . " Evans v. City of Houston, Tex., 246 F.3d 344, 348 (5th Cir. 2001). To make out a prima facie age discrimination claim, McMann must show that he: (1) suffered an adverse employment action; (2) was qualified for the position; (3) was within the protected class when the adverse action occurred; and, (4) was replaced by someone younger or outside the protected class, treated less favorably than a similarly situated younger employee, or otherwise discharged because of his age. Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003) (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
Greystar argues that summary judgment is proper on this claim because McMann resigned voluntarily and his resignation does not qualify as an "adverse employment action." "[A]n adverse employment action consists of ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.'" Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (emphasis in original) (quoting Felton v. Polles, 315 F.3d 470, 486 (5th Cir. ...