                                                             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opinion should not be published and is not precedent except under the limited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
