United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-40875
_______________________
DONALD C. DENMAN, TIMOTHY H. SCOTT, ELKE M. CRUMP,
JAMES C. READER, AND SHERREE E. DOUGLAS,
Plaintiffs-Appellants,
versus
MAXEY CERLIANO, Sheriff, Gregg County Jail;
GREGG COUNTY, TEXAS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
Docket No. 6:03-CV-00013-WMS
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Appellants in this age discrimination suit appeal the
district court’s grant of summary judgment in favor of the former
employer. Because Appellants do not present evidence of age
discrimination beyond their own subjective beliefs, we AFFIRM.
*
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opinion should not be published and is not precedent except under the limited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.
I. Background
This age discrimination case involves five former
employees1 (collectively, “Appellants”) of Gregg County Sheriff
Maxey Cerliano. Cerliano was elected sheriff in 2000; he assumed
office on January 1, 2001, and retained Appellants, who had been
employees of the previous sheriff. Each of the Appellants worked
as a jailer or jail supervisor in the Gregg County Jail.
Various Texas laws and regulations specify the number of
jailers that are supposed to be on duty at any given time in a
county jail. Further, jailers are required to make hourly “walk-
through” security checks of the jail facilities and all inmates,
and to maintain written records of their findings. At the Gregg
County Jail, a log was maintained for this purpose. It is the
contention of Appellants that the Gregg County Jail was under-
staffed and frequently overcrowded, and that due to staffing
issues, Appellants were often unable to complete their “walk-
through” inspections. In any event, both sides are in agreement
that Appellants filled in portions of the security log with false
entries.
In late April, 2002, the Texas State Jail Commission
inspected the county jail and gave it failing marks for its being
understaffed. Shortly thereafter, Cerliano received two confiden-
tial reports from jail staff indicating that jailers were falsi-
1
The five former employees are Donald Denman, Timothy Scott, Elke
Crump, James Reader, and Sherree Douglas.
2
fying records. Two employees identified the Appellants as being
responsible for the falsification of records. An investigation was
conducted, and Cerliano ultimately made the decision to terminate
Appellants. The Appellants were first given the option of retiring
or resigning, which three of the five accepted; the remaining two
Appellants refused to resign, and were subsequently discharged.
Appellants filed suit against Gregg County (“the
County”), alleging that they had been wrongfully terminated under
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq. The Appellants also brought a claim under 42 U.S.C. § 1983
against the County and Cerliano in his individual capacity for
retaliation over their exercise of First Amendment rights. Both
sides then moved for summary judgment. The district court, Judge
John Hannah, granted summary judgment to Cerliano and the County on
Appellants’ § 1983 claim, but denied summary judgment as to
Appellants’ ADEA claims, holding that Appellants had made a
sufficient showing of pretext to justify a trial. Before the case
could be tried, Judge Hannah passed away, and was ultimately
replaced by Judge William Steger. The County again moved for
summary judgment; Judge Steger granted the motion, holding that
Appellants had failed to present sufficient evidence of pretext,
and that in the alternative, Gregg County was not the Appellants’
employer for the purposes of the ADEA. A judgment for Appellees
was entered, and Appellants brought this timely appeal, challenging
only Judge Steger’s holdings.
3
II. Discussion
This court reviews a district court’s grant of summary
judgment de novo. Evans v. City of Houston, 246 F.3d 344, 347 (5th
Cir. 2001). Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 312-33, 106 S. Ct. 2548,
2552-53 (1986). On a motion for summary judgment, a court must
review the facts in the light most favorable to the nonmovant.
Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
The ADEA makes it unlawful for an employer “to discharge
any individual . . . because of such individual’s age.”
29 U.S.C. § 623(a)(1). “When a plaintiff alleges disparate
treatment, ‘liability depends upon whether the protected trait
(under the ADEA, age) actually motivated the employer’s decision.’
That is, the plaintiff’s age must have ‘actually played a role in
[the employer’s decisionmaking] process and had a determinative
influence on the outcome.’” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105 (2000) (quoting
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701,
1706 (1993)).
4
Where, as here, the plaintiff has failed to produce any
direct evidence of discrimination, this court applies the familiar
McDonnell Douglas burden-shifting framework to analyze ADEA claims.
To survive summary judgment, a plaintiff must first establish a
prima facie case of discrimination by a preponderance of the
evidence. Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir.
2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S. Ct. 1817, 1824-25 (1973)). If the plaintiff succeeds
in establishing a prima facie case, there exists a presumption of
discrimination by the employer, who is required to provide the
court with a legitimate, nondiscriminatory reason for the
challenged actions. McDonnell Douglas, 411 U.S. at 802-04, 93
S. Ct. at 1824-25. If the employer furnishes the court with a
legitimate, nondiscriminatory reason for its actions, the burden
shifts again to the plaintiff to provide the court with evidence
“that the legitimate reasons offered by the defendant were not its
true reasons, but were a pretext for discrimination.” Reeves,
530 U.S. at 143, 120 S. Ct. at 2106. Absent a showing that the
nondiscriminatory reason offered by the defendant is false, a
“plaintiff must substantiate his claim of pretext through evidence
demonstrating that discrimination lay at the heart of the
employer's decision.” Price v. Fed. Express Corp., 283 F.3d 715,
720 (5th Cir. 2002). Thus, it is the plaintiff who is left with
the ultimate burden of proving discrimination. Sandstad v. CB
Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002).
5
Both district court judges concluded, and the County does
not now contest, that Appellants properly established a prima facie
case of discrimination. The County in response claimed that
Appellants had been terminated because of their failure to tend to
their responsibilities as jailers, as well as their involvement in
the falsification of records at the county jail. In response to
this legitimate, nondiscriminatory explanation for their being
terminated, Appellants in fact concede that they played varying
roles in the falsification of records. Appellants nevertheless
argue pretext because (1) other jailers played a role in the
falsification of records and were not terminated; (2) Cerliano knew
or should have known of the staffing issues that precipitated
Appellants’ need to skip hourly security checks at the jail; and
(3) terminating Appellants allegedly allowed Cerliano to dodge
criticism for his own mismanagement. Appellants’ case essentially
boils down to an argument that Cerliano is actually to blame for
the jail’s problems, and that his decision to terminate Appellants
was overly severe and based largely upon his own selfish motives.
Even accepted as true, however, Appellants’ allegations
cannot satisfy the final step in the McDonnell Douglas inquiry, as
such allegations provide this court with no evidence whatsoever
indicating that age discrimination was at the heart of Cerliano’s
decision to terminate Appellants. “The ADEA was not . . . intended
to transform the courts into personnel managers. The ADEA cannot
protect older employees from erroneous or even arbitrary personnel
6
decisions, but only from decisions which are unlawfully motivated.”
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir.
1988)(internal citations omitted). Absent evidence of unlawful
discrimination on the basis of age, the ADEA does not provide older
workers with a vehicle to bring suit against a former employer.
Appellants produce a great deal of evidence attacking the merits of
Cerliano’s decision to terminate them, but rest entirely upon
speculation and unsubstantiated belief when it comes to
establishing unlawful motivation. Indeed, Appellants’ theory of
the case — that Cerliano fired Appellants to deflect attention from
his failures as sheriff, or to remove employees who had been
critical of his management — has nothing to do with issues of age
discrimination. “[A]n employee’s subjective belief of
discrimination, however genuine, cannot be the basis of judicial
relief,” and as such, Judge Steger’s grant of summary judgment to
Appellees was appropriate. EEOC v. La. Office of Cmty. Servs., 47
F.3d 1438, 1448 (5th Cir. 1995).2
III. Conclusion
As Appellants fail to produce any evidence indicating
that their termination was motivated by age discrimination, the
district court’s grant of summary judgment is AFFIRMED.
2
Because we conclude that the district court’s grant of summary
judgment to the County was proper, we need not reach the merits of the court’s
holding in the alternative that the County was not Appellants’ employer for the
purposes of the ADEA.
7