1

 The Honorable Susan Webber Wright, Chief Judge, United States District

Court for the Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2332

___________

William Hitt, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the Eastern 

* District of Arkansas.

Harsco Corporation, *

*

Appellee. *

___________

 Submitted: November 21, 2003

Filed: January 30, 2004

___________

Before MELLOY, RICHARD S. ARNOLD, and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

William Hitt appeals the district court's1

 grant of summary judgment for

defendant Harsco Corporation ("Harsco") dismissing Hitt's claim under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. Reviewing the

district court's decision de novo, we affirm.
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I.

This dispute arises from Harsco's termination of Hitt's employment based on

what Harsco asserts was a violation of company rules. Harsco says Hitt was fired for

violating a rule against "aggressing or becoming involved in fighting." Hitt alleges

that he was really fired because of his age, and that the company's explanation is a

mere pretext. 

Between 1992 and 2000, Hitt was employed by Harsco at its industrial support

plant in Armorel, Arkansas. Hitt's responsibilities included operating a road grader,

backhoe, pot carrier and bulldozer. When he was terminated in August 2000, Hitt

was 65 years of age.

Hitt's son-in-law, Mark Odom, age 34, also worked at the Harsco plant. As of

August 2000, tension had arisen between Hitt and Odom. Hitt believed that his

grandson -- Odom's son -- had an injury to his hand as a result of abuse by a third

party. Hitt had been trying to get custody of the child, and Odom refused even to

allow contact between Hitt and his grandson.

On the morning of August 23, 2000, there was an altercation between Hitt and

Odom at the Harsco plant. Hitt sought out Odom in the employee break room. With

a raised voice, Hitt asked Odom what was wrong with the child's hand. Odom replied

that he did not know. Hitt then said "yeah, you do know. You know what the

problem is with his hand." Witnesses reported that Hitt told Odom that he would

"kick his ass" because of the dispute over Hitt's grandson. As the discussion became

heated, Odom said, "that's something we need to talk about outside."

Hitt followed Odom outside, while a group of employees gathered. According

to Hitt, they "probably" thought they were going to see a fight. Witnesses later

reported to Harsco supervisors that Hitt cursed and attempted to punch Odom, and

that Odom retaliated by kicking Hitt.
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Odom left the plant immediately after the incident. Hitt went to a plant

foreman, Paul Smith, to tell him what happened. According to Hitt, Smith replied by

saying, "Old man, you are too old to be fighting." Hitt claimed that he wasn't

fighting, but that he was only asking about his grandchild, and that Odom kicked him.

At the end of the day, Harsco suspended both Hitt and Odom. Hitt's supervisor,

Rodney Barnes, and John Schmalzried, the regional business director, conducted an

investigation of the incident by interviewing eyewitnesses.

Schmalzried reported the results of the investigation to Robert Imhof, Harsco's

Director of Industrial Relations. Imhof, whose office was in Pennsylvania, had the

ultimate authority to hire and discharge Harsco employees. Schmalzried told Imhof

that two employees were involved in a "heated discussion" in the breakroom that had

then moved outside. He reported that eyewitnesses said one employee had thrown

punches and the other employee had kicked back in defense or retaliation.

Schmalzreid did not inform Imhof of the identities of the employees, or of their ages,

when he made this report.

Imhof decided that both men should be terminated pursuant to Harsco's General

Conduct rule 6: "An employee guilty of horseplay, agitating, aggressing or becoming

involved in fighting will be subject to disciplinary action, including discharge." No

one was hired to replace Hitt. After his termination, Hitt's responsibilities were

redistributed among Harsco's remaining employees.

Approximately 30 days after Hitt's termination, Harsco underwent a reductionin-force. Hitt alleges that all members of his former crew over age 50 were laid-off

during the downsizing. Layoffs were decided by plant supervisors in a series of

meetings that occurred over a number of days leading up to the workforce reduction.

At some point following Hitt's termination, Hitt's wife, Brenda, contacted

Imhof's office to complain about Hitt's termination. In response to these calls, Imhof
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visited the Hitts at their home. Hitt alleges when he related his version of the

altercation with Odom, Imhof replied by saying he had been "misinformed" when he

decided to terminate Hitt.

Hitt filed a charge of age discrimination with the Equal Employment

Opportunity Commission ("EEOC"). The EEOC concluded that Hitt was terminated

because of his involvement in a fight. After being issued a right to sue letter from the

EEOC, Hitt filed the instant action alleging that Harsco fired him in violation of the

ADEA. The district court granted summary judgment on the ground that Hitt failed

to present evidence sufficient to create a reasonable inference that Harsco unlawfully

discriminated on the basis of age.

II.

The district court should enter summary judgment when there is no genuine

issue as to any material fact and the moving party is entitled to a judgment as a matter

of law. Fed. R. Civ. Proc. 56(c). The non-moving party may not rest upon mere

allegations or denials of the moving party's pleading, but must set forth specific facts

showing that there is a genuine issue for trial. Fed. R. Civ. Proc. 56(e). "Only

disputes over facts that might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Like the district court, we give the non-moving party

the benefit of reasonable inferences that may be drawn without resorting to

speculation.

The ADEA makes it unlawful for an employer to discriminate against an

employee on the basis of the employee's age if the employee is 40 years of age or

older. Given the evidence in this case, the parties agree that Hitt's claims are properly

analyzed under the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).
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Under that analysis, the plaintiff must first establish a prima facie case that the

defendant violated the statute. To make such a case under the ADEA, the plaintiff

must ordinarily show that: (1) he is a member of a protected age group; (2) he was

performing his job at a level that met his employer's legitimate expectations; (3) he

was discharged; and (4) he was replaced by a younger worker. E.g., Ziegler v.

Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998). Where, as

here, the plaintiff's responsibilities were not reassigned to a specific individual, we

have said the plaintiff must satisfy the fourth element of the prima facie case by

showing "age was a factor in the employer's decision to terminate." Yates v. Rexton,

Inc., 267 F.3d 793, 799 (8th Cir. 2001); see also Reynolds v. Land O'Lakes, Inc., 112

F.3d 358, 361 (8th Cir. 1997).

If an age discrimination plaintiff has established a prima facie case, the burden

shifts to the defendant to "'produc[e] evidence that the plaintiff was rejected, or

someone else was preferred, for a legitimate, nondiscriminatory reason.'" Reeves v.

Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (quoting Texas Dep't of

Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the employer meets its burden

to produce such evidence, then the plaintiff must "'prove by a preponderance of the

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 (quoting

Burdine, 450 U.S. at 253).

In this case, Harsco joined issue early by volunteering that Hitt was fired for

a legitimate, nondiscriminatory reason: He was fighting. Whether Hitt can satisfy

the fourth element of the prima facie case and whether Hitt can establish that Harsco's

stated reasons were a pretext turn, respectively, on whether Hitt can prove that age

was a factor in, or the true reason for, the decision to terminate. We agree with the

district court that there is insufficient proof of age discrimination to survive Harsco's

motion for summary judgment.
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Hitt urges that there is a genuine issue of fact as to whether he was actually

fighting with Odom during the incident that led to termination. He asserts that Odom

kicked him, but that he never engaged in fighting or impermissible aggressive

behavior. Hitt relies on Imhof's alleged admission that he was "misinformed" about

the incident when he made the decision to terminate Hitt for fighting. The difficulty

with this contention is that it focuses on the wrong question. The key question in a

discrimination case like this one is not whether Hitt was truly fighting, but whether

the employer really believed that he was fighting, such that the termination was based

on a non-discriminatory reason. Scroggins v. Univ. of Minnesota, 221 F.3d 1042,

1045 (8th Cir. 2000). It is undisputed that eyewitnesses reported to Harsco

supervisors that Hitt threatened force against Odom in the break room, and then threw

a punch at Odom when the two moved outside. These undisputed facts provided

Harsco with a legitimate, non-discriminatory basis for termination, even if Hitt could

now show that the witnesses were wrong in what they reported about the altercation.

Hitt argues that Harsco's explanation for his termination was a mere pretext for

age discrimination, because he was disciplined more harshly than younger employees

who engaged in similar conduct. Like the district court, we find the evidence of

alleged disparate treatment unpersuasive. Hitt submitted evidence that in 1998, two

Harsco employees were treated more leniently than he, because they were merely

suspended for fighting. But even assuming the 1998 incident and Hitt's altercation

were comparable (Harsco says they were not), one of the two employees who

received this alleged leniency was aged 51, and thus a member of the protected class

under the ADEA. Harsco, on the other hand, submitted undisputed evidence that

younger employees were terminated for violating the company rule breached by Hitt.

One 35-year-old employee was terminated for fighting in a previous incident, and

Odom was terminated at age 34 for the altercation involving Hitt. If anything, this

evidence tends to demonstrate that Harsco applies the rule against fighting without

regard to age: A protected employee was suspended in one fighting incident; a

younger employee was terminated in another; and in Hitt's own case, the company

terminated both a younger employee and a protected employee. The evidence does

not support Hitt's claim that age motivated his termination.
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Hitt also submits that he was called "old man" by Smith, the foreman, and

Barnes, the supervisor. Hitt testified that Barnes said on the work site that "you are

too old to be out there," and that Barnes made comments referring to Hitt as "old

man" with some regularity. He asserts that on the date of the altercation with Odom,

Smith told Hitt, "Old man, you are too old to be fighting." From these submissions,

Hitt asks us to find that a reasonable jury could infer his termination was based on

age.

We are not persuaded that these remarks support an inference of age

discrimination. While we have noted that "stray remarks" regarding age may be

relevant to establishing a prima facie case or pretext under some circumstances, such

comments are not persuasive evidence of motive when the remarks are made by

persons other than a decisionmaker. Girten v. McRentals, Inc., 337 F.3d 979, 983

(8th Cir. 2003). Hitt has not presented facts to dispute Harsco's evidence that Robert

Imhof was the person who decided to terminate Hitt and Odom, and that he did so

without knowing their ages. Smith and Barnes were not decisionmakers; they did not

even communicate with Imhof about the incident. Although Barnes participated with

Schmalzreid, the regional business manager, in the company's investigation of the

incident, there is no dispute that the report to Imhof about the altercation was based

upon the statements of independent witnesses with no age-related animus, not upon

Barnes's own rendition of events. Accordingly, even if the remarks cited by Hitt

could be taken as evidence of motive by Smith or Barnes to discharge persons based

on age, they do not support an inference that Imhof's decision to terminate Hitt was

so motivated.

Hitt next contends that the decision to terminate him was influenced by the

prospect of impending layoffs at Harsco. He argues that Harsco knew it would be

conducting a reduction-in-force in the near future, so it used the Hitt-Odom dispute

as a pretext to maximize the number of older employees terminated in the reduction.

Hitt also asserts that Harsco disregarded its own workforce reduction policy when it

made its decisions about layoffs, presumably so that it could base the decisions on

age instead. 
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We are not convinced that Hitt has demonstrated a sufficient connection

between the reduction-in-force and his termination to warrant a reasonable inference

of age discrimination. Hitt has not cited, and our independent review has not located,

evidence in the record that as of the date when Hitt was terminated, Harsco already

had determined to implement the reduction-in-force. Without such evidence, it would

be speculation to find that layoffs occurring in September influenced the termination

of an employee in August. 

We doubt, moreover, whether a pre-existing plan to reduce the workforce

would tend to undermine Harsco's evidence that Hitt was fired for fighting, and not

because of his age. Whether or not there is a basis to find that Harsco's decisions

during the reduction-in-force in September were motivated by age, it remains

undisputed that Harsco had a legitimate non-discriminatory basis for terminating Hitt.

And it is undisputed that both employees involved in the altercation, including the

younger employee, were discharged. Perhaps Harsco decided to be tough on fighters

because the company had to reduce its workforce, but rigorous enforcement of

company rules against all violators does not tend to prove age discrimination. 

The judgment of the district court is affirmed.