* Local Rule 47.5 provides:

"The publication of opinions that have no precedential value and

merely decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public and

burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60150

Summary Calendar

WILLIAM STAHLKE,

Plaintiff-Appellant,

VERSUS

VAN LEER CONTAINERS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Mississippi

(3:93 CV 405)

(September 1, 1995)

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

William Stahlke appeals from an adverse summary judgment which
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dismissed his complaint filed pursuant to the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, alleging that he was

terminated from employment because of his age. After a careful de

novo review of the pleadings and proper summary judgment proof, we

find that the appellant did not raise a genuine issue of material

fact with respect to the question whether the employer’s reasons

for terminating Stahlke’s employment were pretextual, and,

accordingly, AFFIRM the judgment of the district court.

Our review of the record reveals that Stahlke presented

evidence in the district court that he was discharged by Van Leer

Containers, Inc. (“Van Leer”), was qualified for the position, was

covered under the protected class at the time of discharge and was

replaced by someone younger. By presenting such evidence, he

established a prima facie case. Bienkowski v. American Airlines,

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

In response to Stahlke’s claim of age discrimination, Van Leer

presented summary judgment proof in support of its articulated

legitimate, nondiscriminatory, reasons for Stahlke’s termination.

Among the reasons asserted for the termination by Van Leer were the

following:

1. The Canton, Mississippi facility to which Stahlke had

been assigned was profitable prior to Stahlke’s stewardship and was

not profitable when Stahlke was in charge;

2. Stahlke failed to correct deficiencies in customer

service and excessive overtime rates;

3. Very expensive materials and equipment were left lying
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around to rust on the outer perimeter of the Canton facility and

although instructed to immediately “clean up” this situation and

agreeing that he would perform the clean up, Stahlke did not

perform the clean up. The clean up was again ordered to be

conducted and was not done even though Stahlke reported that it had

been done; and

4. Stahlke’s performance was deficient in failing to address

and correct serious morale problems, poor production, and lost

revenues and inventory units at the Canton facility.

Van Leer’s articulated reasons if believed by a jury could easily

support a finding that unlawful discrimination was not the cause of

Stahlke’s termination. Thus, the presumption of discrimination

raised by Stahlke’s prima facie case is rebutted; the legal

inference of discrimination arising from the initial prima facie

evidence is destroyed. Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 255 & n.10 (1981). In order for Stahlke to

prevail under such circumstances, it became his burden to present

evidence that Van Leer’s proffered reasons were pretextual and that

age was the reason for the termination. St. Mary’s Honor Ctr. v.

Hicks, 113 S. Ct. 2742, 2747 (1993); Bodenheimer v. PPG Indus.,

Inc., 5 F.3d 955, 957 (5th Cir. 1993).

We find nothing in the record before the district court to

raise a genuine issue that the termination reasons were pretextual
 

1 Stahlke has attached to his brief a number of documents in an effort to

establish that conditions at the Canton facility resulted from circumstances

beyond his control and to show that he was, in fact, a capable manager. Except

insofar as they are reflected in Stahlke’s deposition testimony, these facts were

not presented to the district court, by affidavit or otherwise, and are not

considered on appeal by this Court.

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and that in fact age was the determining factor.1 Stahlke’s own

deposition testimony, as recognized by the district court, reflects

his belief that the termination was age-based was conclusional, not

based on any facts sufficient to create a genuine issue whether age

played a role in his termination. See Bodenheimer, 5 F.3d at 959.

Accordingly, the judgment of the district court is AFFIRMED.