                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 99-60677
                           Summary Calendar
                        _____________________


           LOYD E CRIDDLE

                                          Plaintiff-Appellant

           v.

           PIGGLY WIGGLY OF AMORY, INC

                                          Defendant-Appellee


_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
                    Docket No. 1:98-CV-271-JAD
_________________________________________________________________
                          March 23, 2000

Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant Loyd Criddle (“Criddle”) appeals the

district court’s entry of summary judgment in favor of Defendant-

Appellee Piggly Wiggly of Amory, Inc. (“Piggly Wiggly”).   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this opinion should not be published and is not precedent except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

     Criddle is a former assistant-manager at a Piggly Wiggly

supermarket in New Hope, Mississippi.    Criddle was fired from

this position on January 30, 1998.    At the time of his

termination, Criddle was fifty-seven years old.    Criddle claims

that he was fired because of his age.    Piggly Wiggly contends

that Criddle was fired because he was causing morale problems

among store employees by undermining the store manager’s

authority, and by being overly critical of some store employees

while being “overly-friendly” with certain female employees.

     After he was fired, Criddle filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”).    The EEOC

investigated, but declined to prosecute Criddle’s claim, and it

issued him a right-to-sue letter.    Criddle subsequently filed

suit in federal district court, alleging that his termination

violated the Age Discrimination in Employment Act (“ADEA”).       See

29 U.S.C §§ 621-634.   Piggly Wiggly subsequently moved for

summary judgment.   It argued that Criddle failed to make out a

prima facie case of age discrimination and that, even if he could

make out a prima facie case, he could not show that Piggly

Wiggly’s proffered reasons for firing Criddle were pretext for

unlawful discrimination.

     In considering Piggly Wiggly’s motion, the district court

assumed that Criddle had made out a prima facie case of

discrimination.   However, the lower court agreed that Piggly

Wiggly had presented evidence of legitimate, nondiscriminatory


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reasons for firing Criddle, and that Criddle had failed to

present evidence that these reasons were mere pretext for

unlawful discrimination.    Therefore, the district court entered

summary judgment in favor of Piggly Wiggly.      Criddle timely

appeals.



                           II.   DISCUSSION

       We review a grant of summary judgment de novo, applying the

same standards as the court below.      See Matagorda County v. Law,

19 F.3d 215, 217 (5th Cir. 1994).      Summary judgment is proper

when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.      See Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).        A

dispute regarding a material fact is “genuine” if the evidence is

such that a reasonable jury could find in favor of the nonmoving

party.    See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

       The ADEA makes it unlawful for an employer to discharge “or

otherwise discriminate” against an individual on the basis of

age.    See 29 U.S.C. § 623(a)(1); Brown v. CSC Logic, Inc., 82

F.3d 651, 654 (5th Cir. 1996).    In analyzing ADEA claims, we have

adopted the evidentiary procedure first enunciated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).      See Bodenheimer v.

PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).      Under this

standard, an ADEA plaintiff must first make out a prima facie

case of discrimination by demonstrating “that: (1) he was


                                   3
discharged; (2) he was qualified for the position; (3) he was

within the protected class at the time of discharge; and (4) he

was either i) replaced by someone outside the protected class,

ii) replaced by someone younger, or iii) otherwise discharged

because of his age.”    Id.; see also Price v. Marathon Cheese

Corp., 119 F.3d 330, 336-37 (5th Cir. 1997); Bienkowski v.

American Airlines, Inc., 851 F.2d 1503, 1504-05 (5th Cir. 1988).

     If the plaintiff makes out a prima facie case, a presumption

of discrimination arises and the burden shifts to the employer to

rebut this presumption by setting forth legitimate,

nondiscriminatory reasons for discharging the employee.      See

Bodenheimer, 5 F.3d at 957.   If the employer meets this burden of

production, the burden shifts back to the employee to prove that

the employer’s proffered reasons are mere pretext for unlawful

age discrimination.    See id.; St Mary’s Honor Ctr. v. Hicks, 509

U.S. 502 (1993).

     The district court assumed that Criddle had made out a prima

facie case of discrimination.   On appeal, Piggly Wiggly attacks

this presumption and argues that Criddle failed to make out a

prima facie case.   Because we find that Piggly Wiggly has

presented overwhelming evidence that it fired Criddle for

legitimate, nondiscriminatory reasons, and that Criddle has

failed to rebut this presumption, we decline to address Piggly

Wiggly’s challenges to Criddle’s prima facie case.    We will

assume, without deciding, that Criddle has made out a prima facie

case of age discrimination.


                                  4
     Piggly Wiggly may produce proof of legitimate,

nondiscriminatory reasons for terminating Criddle by setting

forth evidence that, “if believed by the trier of fact would

support a finding that unlawful discrimination was not the cause

of the employment action.”    Rhodes v. Guiberson Oil Tools, 75

F.3d 989, 993 (5th Cir. 1999) (en banc).      Piggly Wiggly has

produced affidavits from Larry Allgood (the meat department

manager at the New Hope Piggly Wiggly), Joe McGonagill (the store

manager of the Piggly Wiggly supermarket in Amory), and Bobby

McGonagill (the Vice President of Piggly Wiggly of Amory, Inc.).

Each of these affidavits sets forth legitimate, nondiscriminatory

reasons for terminating Criddle.       The affidavits indicate that

Criddle engaged in inappropriate behavior with female employees,

was damaging the morale of other employees, and was undermining

the authority of his superiors.

     Because Piggly Wiggly has set forth legitimate reasons for

terminating Criddle, the burden shifts back to Criddle to show

that these reasons are mere pretext for unlawful age

discrimination.    See Price 119 F.3d at 337.     To withstand summary

judgment, Criddle must point to a “genuine issue of material fact

concerning pretext.”    Moore v. Eli Lilly & Co., 990 F.2d 812, 815

(5th Cir. 1993).   This evidence must “consist of more than a mere

refutation of the employer’s legitimate nondiscriminatory

reason[s]”; it must offer “some proof that age motivated the

employer’s action.” Id. at 815-816 (citations omitted).

     Criddle offers no evidence to indicate that Piggly Wiggly’s


                                   5
proffered reasons for terminating him are pretext for unlawful

age discrimination.   In his deposition, Criddle merely stated

that he believed age was a motivating factor in his termination

because Piggly Wiggly refused to give him “another reason.”

Criddle also points out that Piggly Wiggly did not oppose his

application for unemployment benefits.   By Criddle’s reasoning,

if he was not terminated because of his age, but because of his

conduct, Piggly Wiggly would have opposed his application for

unemployment benefits.   This argument is unpersuasive.

     Mississippi bars a worker from receiving unemployment

benefits if his employer demonstrates, through clear and

convincing evidence, that the employee was fired for misconduct.

Miss. Code Ann. § 71-5-513(A)(1)(b) (1999).   For the purposes of

unemployment benefits, the Mississippi Supreme Court defines

“misconduct” as “conduct that reasonable and fair-minded external

observers would consider a wanton disregard of the employer’s

legitimate interests.”   Mississippi Employment Sec. Comm’n v.

Phillips, 562 So.2d 115, 118 (Miss. 1990).    Given that clear and

convincing evidence of “wanton” conduct is required to find that

an employee was terminated for misconduct, it follows that not

every termination for “cause” is necessarily for “misconduct”.

See, e.g., Mississippi Employment Sec. Comm’n v. McLane-Southern,

Inc., 583 So.2d 626, 628 (Miss. 1991) (finding that an “isolated”

fight in the workplace was not “misconduct” for the purposes of

determining eligibility for unemployment benefits).   Piggly

Wiggly’s failure to challenge Criddle’s application for


                                 6
unemployment benefits, by itself, does not indicate that the

legitimate reasons proffered for terminating Criddle were pretext

for discrimination.

     Neither Criddle’s subjective belief that age played a factor

in his termination nor Piggly Wiggly’s failure to object to

Criddle’s application for unemployment benefits constitutes

evidence that would lead a jury to conclude that Piggly Wiggly’s

proffered reasons were pretext for unlawful age discrimination.

See Price v. Marathon Cheese Corp., 119 F.3d 330, 337 (5th Cir.

1997) (finding that an employee’s subjective belief that he was

fired because of age was insufficient evidence to overcome the

employer’s proffered reasons for firing the employee).

     In sum, we find that Piggly Wiggly has come forward with

evidence indicating that it fired Criddle because he was causing

substantial morale problems within the store.   Criddle, however,

has presented absolutely no evidence indicating that Piggly

Wiggly’s reasons for firing him are mere pretext for unlawful age

discrimination.   Therefore, the district court did not err in

granting Piggly Wiggly’s motion for summary judgment.



                          III. CONCLUSION

     For the above stated reasons, we AFFIRM.




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