           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          January 7, 2008

                                     No. 06-31230                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


GREGORY A JOHNSON

                                                  Plaintiff-Appellant

v.

POINTE COUPEE PARISH POLICE JURY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                      USDC Nos. 3:05-CV-268; 3:05-CV-183


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       This is an employment discrimination case. Gregory A. Johnson appeals
the district court’s grant of summary judgment in favor of his former employer,
the Pointe Coupee Parish Police Jury (“Pointe Coupee”). Johnson sued Pointe
Coupee for age and race discrimination under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and the Fourteenth
Amendment. We AFFIRM the judgment of the district court for the reasons
below.
                      I. FACTS AND PROCEEDINGS
      Johnson worked for the Parks and Recreation Department of Pointe
Coupee Parish (“the Department”) for twenty years and was a full-time employee
as of 1997. At the time of his termination in 2004, he was Athletic Program
Manager and Assistant Director for the Department. He served as an interim
Department Director from time to time when the position was vacant.
      Johnson was disciplined by several different supervisors while working
for the Department. His supervisor Yvonne Chenevert reported him for
insubordination numerous times in 1995 and 1996.          In 2001, Johnson’s
supervisor Jason Knapps and the Department oversight committee decided
Johnson had abused his Department cell phone and took it away. When Knapps
met with Johnson to communicate the decision, a heated argument ensued and
Knapps wrote an employee incident report. Johnson’s relationship with his last
supervisor, Sal Genusa, was particularly strained. Genusa and Johnson had
several confrontations, which were documented in Johnson’s personnel file. The
incident that led to Johnson’s termination occurred during a baseball
tournament and involved a confrontation between Johnson and Genusa that
took place in front of several coaches.
      According to his deposition testimony, a Pointe Coupee official informed
Johnson that he was terminated and that he had the right to go before the
Pointe Coupee personnel committee to appeal his termination. Johnson went
before the personnel committee where he had an opportunity to speak with
Police Jury members about his termination. Following the recommendation of
the personnel committee, the Pointe Coupee Parish Police Jury voted
unanimously to terminate him. Johnson filed a timely charge of race


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discrimination with the Equal Employment Opportunity Commission (“EEOC”),
received a right to sue letter, and filed this action in district court.
                         II. STANDARD OF REVIEW
      Generally, a district court’s grant of summary judgment is reviewed de
novo. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). Here we review the
district court’s judgment for clear error because Johnson failed to timely object
to the magistrate’s report and recommendations, which were adopted by the
district court in its summary judgment ruling. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996). The plain error standard requires
that there be “an error that is plain and that affect[s] substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (U.S. 1993) (internal quotations omitted).
      Summary judgment is appropriate if there are no material issues of
disputed fact and the moving party is entitled to judgment as a matter of law.
Morris, 449 F.3d at 684. In employment discrimination cases “[i]t is more than
well-settled that an employee’s subjective belief that he suffered an adverse
employment action as a result of discrimination, without more, is not enough to
survive a summary judgment motion, in the face of proof showing an adequate
nondiscriminatory reason” for the adverse action. Douglass,79 F.3d at 1430.
                                III. DISCUSSION
      Johnson does not raise his claim under the Fourteenth Amendment, his
claim under § 1981, or his claims of wage discrimination and failure to promote
on appeal. This court “will not raise and discuss legal issues that [the appellant]
has failed to assert.” Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Claims that are not briefed on appeal are deemed to be abandoned. Id., see also
FED. R. APP. PROC. 28(a)(9).
      The district court dismissed Johnson’s claims under the ADEA because he
failed to exhaust his administrative remedy when he did not file an age
discrimination claim with the EEOC. Johnson does not contest this finding or

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state that he has amended his EEOC complaint to include age discrimination.
He merely says that the district court should have considered whether his age
discrimination claim ought to be remanded to the EEOC “for consideration on
the merits.”
      Under 29 U.S.C. § 626(d), “no civil action may be commenced by an
individual under [the ADEA] until 60 days after a charge alleging unlawful
discrimination has been filed with the [EEOC].” See also Taylor v. Books A
Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002) (“Employment discrimination
plaintiffs must exhaust administrative remedies before pursuing claims in
federal court. Exhaustion occurs when the plaintiff files a timely charge with the
EEOC and receives a statutory notice of right to sue.”). Thus a plaintiff must file
a charge of age discrimination with the EEOC before filing a civil lawsuit under
the ADEA—something which Johnson has yet to do.
      Johnson filed a charge with the EEOC on July 25, 2004, alleging
discrimination on the basis of race for his termination. He did not check the box
for age discrimination. In his statement of particulars, he said “I was discharged
on June 1, 2004. . . . because of insubordination. I believe that I was
discriminated against . . . because of my race . . . because [a white colleague] was
given a choice to resign or be fired and I was not insubordinate.” He did not
mention age discrimination in the EEOC charge. From the record it appears that
he never amended his EEOC charge to include allegations of age discrimination.
Johnson has failed to comply with the statutory requirements for bringing suit
under the ADEA and his claim was not properly before the district court. The
district court correctly dismissed his age discrimination claim and we affirm.
      Johnson timely filed an EEOC charge with regard to his Title VII claim for
unlawful termination on the basis of race. The district court dismissed Johnson’s
Title VII claim because Johnson failed to show that he would be able to make out
a prima facie case of discriminatory discharge at trial. To establish a prima facie


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case for race discrimination Johnson must show that he is a member of a
protected class, that he was discharged, that he was otherwise qualified for the
position he held, and that the position remained open and was ultimately filled
by someone not in his protected class. See St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 506 (1993). The district court found that Johnson did not introduce any
evidence with regard to the fourth element of his prima facie case, and that he
could not show that race was not a neutral factor in his termination.
      Johnson continues to rest on conclusory statements without presenting
competent evidence to demonstrate that the district court clearly erred. Such
statements are not capable of sustaining Johnson’s burden on summary
judgment. “[U]nsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to either support or
defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754
F.2d 1212, 1216 (5th Cir. 1985) (internal quotation omitted).
                              IV. CONCLUSION
      We AFFIRM the district court’s grant of summary judgment in favor of
Pointe Coupee.




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