*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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41551

Summary Calendar

_____________________

STEVE GIFFORD,

Plaintiff-Appellant,

versus

LONE STAR STEEL CO.,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(2:96-CV-76)

_______________________________________________________

January 25, 1999

Before REAVLEY, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Steve Gifford appeals the summary judgment for his former employer Lone Star Steel

Company in Gifford’s age discrimination suit pursuant to the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. §§ 621-634 (1998), and the Texas Commission on Human Rights Act

(“TCHRA”), TEX. LABOR CODE ANN. §§ 21.001-.405 (West 1996 & Supp. 1999). The issue in

this appeal is whether Gifford has raised a genuine issue of material fact as to whether Lone Star

Steel’s proffered reason for terminating and not transferring Gifford as part of its reduction in

force (“RIF”) was merely a pretext for age discrimination. The district court held that Gifford
2

failed to create a genuine factual issue as to (1) whether Lone Star’s stated reasons were false and

(2) whether age discrimination was the real reason for Gifford’s termination. After reviewing the

summary judgment record, the briefs, and the relevant authorities, we affirm the summary

judgment for Lone Star Steel Company, essentially for the reasons stated in the district court’s

thorough memorandum opinion. See Gifford v. Lone Star Steel Co., No. 2:96-CV-0076 (E.D.

Tex. Nov. 26, 1997). 

The affidavits and deposition testimony presented do not raise a genuine issue of material

fact as to (1) whether Lone Star Steel’s stated reasons for Gifford’s termination were false and (2)

whether age discrimination was the real reason for Gifford’s termination. See Walton v. Bisco

Indus., 119 F.3d 368, 370 (5th Cir. 1997). First, the opinion evidence criticizing Lone Star’s

determination that threading experience was an important and necessary qualification for finishing

foremen who were retained after the reduction in force is not sufficient to rebut Lone Star’s

proffered nondiscriminatory reason for terminating Gifford. As we have previously stated, “The

ADEA was not intended to be a vehicle for judicial second-guessing of business decisions, nor

was it intended to transform the courts into personnel managers.” Thornbrough v. Columbus &

Greenville R.R., 760 F.2d 633, 647 (5th Cir. 1985), overruled on other grounds by St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); see also Walton,

119 F.3d at 372 (rejecting plaintiff’s criticism that her employer should have demoted rather than

terminate her); Davis v. First Nat’l Bank, 976 F.2d 944, 949-50 (5th Cir. 1992) (holding that

former bank employee failed to rebut employer’s proffered nondiscriminatory reason for

termination—that plaintiff failed to adapt to the new policies and procedures implemented by new

management—where plaintiff attempted to justify his admitted failure by criticizing the new

procedures). Although Gifford may have had more total years of experience at the company than

younger foremen who were retained, Gifford admits that he had no experience threading pipe or

supervising threading operations, a criteria deemed critical to Lone Star. Additionally, the

assertions of Gifford and his co-workers that Gifford was better qualified than Rice due to his
3

broader experience in the company and should have been transferred to the foreman position in

the welding department are not sufficient to rebut Lone Star’s assertion that Rice was transferred

because he had a degree in engineering and the welding manager specifically requested Rice to

assist with trouble-shooting in that department. On this record, a reasonable jury could not

conclude that Lone Star’s proffered reasons for Gifford’s termination were false.

Second, even if Gifford had successfully satisfied the first prong of the Walton test, he has

failed to raise a genuine factual issue as to whether age discrimination was the real reason for his

termination. The alleged comments by Wingrove that Gifford should be “out fishing instead of

working” or “retired and out fishing,” and that Gifford could call his termination “being retired, or

fired, or a reduction in workforce, it really doesn’t matter, you can call it anything you want,”

were no more than “stray remarks” that are not sufficiently probative of discriminatory intent for a

reasonable jury to conclude that age discrimination was the real reason for Gifford’s termination.

See, e.g., Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (holding that

supervisor’s remark that a younger person could do faster work and reference to the plaintiff as

an “old fart” were stray remarks, insufficient to establish age discrimination); EEOC v. Texas

Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (holding that personnel director’s remark

while explaining the decision to terminate the plaintiff that “it’s just that you’ve reached that age

and years of service that we can bridge you to retirement” was a stray remark and not probative

of whether the employer’s decision to terminate the plaintiff was motivated by age

discrimination). This conclusion is bolstered by the fact that Lone Star retained at least one

foreman older than Gifford in the welding department and discharged younger foremen,

unprotected by ADEA, as part of the RIF.

Because we conclude that summary judgment for Lone Star Steel Company was proper, 

Gifford’s second point of error regarding the district court’s denial of his request for a jury trial is

moot.

AFFIRMED.