*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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-60116

Summary Calendar

_______________________

GEORGE E. DULIN,

Plaintiff-Appellant,

versus

DOVER ELEVATOR COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(3:96-CV-15-B-A)

_________________________________________________________________

March 2, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Plaintiff-appellant George Dulin brought suit against his

employer, Dover Elevator, claiming age discrimination under the Age

Discrimination in Employment Act 29 U.S.C. §621 et. seq. (ADEA).
2

The district court granted Dover Elevator’s motion for summary

judgment. We affirm.

I. FACTS

Appellant was employed by Dover Elevator as a

Construction Superintendent II. His primary duty was to supervise

construction crews within the company’s Memphis, Tennessee,

district. He was paid one of the highest salaries in the Memphis

district. 

On September 22, 1994, at the age of sixty, appellant was

terminated. He had been employed by the appellee for twenty-seven

years and had an exemplary record. Appellant claims that his

termination was the result of age discrimination, because his

position was not eliminated, but rather he was replaced by a

younger person.

Appellee asserts that the Memphis district construction

division began to lose substantial amounts of money in 1990 and

that, as a result, various cost cutting measures were implemented.

Appellee asserts that after projecting further losses in 1994, it

eliminated appellant’s supervisory position and divided his duties

among two other existing employees. District manager Ken Dover and

the New Equipment Sales Manager, George Robbins, both took some of

appellant’s former duties, but without promotion or a pay raise.

Appellee maintains that there has been no Construction
3

Superintendent II in the Memphis district since the appellant was

terminated in 1994.

II. DISCUSSION

A. Standard of Review

This court reviews a grant of summary judgment de novo.

See Brown v. CSC Logic, Inc., 82 F.3d. 651, 653 (5th Cir. 1996).

It may affirm the district court’s grant of summary judgment on any

ground raised in the district court and upon which both parties had

the opportunity to present evidence. See id. at 653-54. Summary

judgment is proper if the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to summary judgment as

a matter of law.” FED. R. CIV. P. 56(c). On a motion for summary

judgment, the movant has the initial burden of showing the absence

of a genuine issue of material fact. See Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986). To find that no genuine issue of

material fact exists, the court must determine that no reasonable

trier of fact could find for the nonmovant. See Matsushita Elec.

Indus. v. Smith Radio Corp., 475 U.S. 574, 587 (1986). In making

that determination, the court must draw all justifiable inferences

in favor of the nonmoving party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). 

B. The Parties’ Evidentiary Burden
4

The ADEA makes it unlawful to “discharge any individual

or otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U.S.C. § 623(a)(1). The

parties’ evidentiary burdens are well established. See Brown, 82

F.3d. at 654. The plaintiff must first establish a prima facie

case of employment discrimination by a preponderance of the

evidence, which creates a rebuttable presumption. See Bodenheimer

v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). To rebut

this presumption, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action taken. See

Texas Dep’t. Of Community Affairs v. Burdine, 450 U.S. 248, 253-54

(1981). If the employer is able to present such evidence, the

presumption dissolves, and the burden of production shifts back to

the plaintiff to present probative evidence that the employer’s

stated reason was not the true reason for the action taken, but

rather a pretext for age discrimination. See Bodenheimer, 5 F.3d

at 957-58. 

C. The Prima Facie Case

Four elements make up a prima facie case under the ADEA.

The plaintiff must prove that: (1) he was discharged; (2) he was

qualified for the position; (3) he was within the protected class;

and (4) he was replaced by someone outside the protected class,
5

someone younger, or was otherwise discharged because of his age. 

See Bodenheimer, 5 F.3d at 957. 

The appellee has conceded, and the district court agreed,

that the appellant has established the first three elements of his

prima facie case. The district court found that appellant had not

established the fourth element, agreeing with the appellee that

appellant’s position had been eliminated and his duties divided

among other employees. On appeal, appellant contends that he

established the fourth element, by showing that he was replaced by

someone outside the protected class. We agree with the district

court and the appellee that appellant has failed to raise an issue

of material fact surrounding the fourth element .

The evidence presented by the appellant is insufficient

to establish the fourth element of his prima facie case. Appellant

has failed to show by a preponderance of the evidence that he was

replaced by someone outside the protected class or by someone

younger, or that he was otherwise discharged because of age. The

evidence that the appellant offers to prove this element serves

only to support the contention of the appellee that the appellant’s

position was eliminated and that the duties of construction

superintendent were taken up by two existing employees, Ken Donner

and George Robbins. First, the personnel record of George Robbins

states that the responsibilities of construction superintendent

were added to his duties after appellant was fired. Second, the
1 Appellant also points to the 1995 and 1996 editions of a

publication entitled Who’s Who in Memphis and Midsouth Business,

which lists George Robbins as the Construction Superintendent for

Dover Elevator. This document has not been authenticated and was

not addressed by the district court.

2 A similar situation existed in Rottersman v. CBS, Inc.,

726 F.Supp 484 (S.D.N.Y., 1989), also cited in the appellant’s

brief. Again, in that case the employer’s company manual required

an attempt to place the terminated employee in another position.

No such company policy exists in the present case.

6

memo to George Robbins of February 7, 1996, refers to his sales and

construction supervisory duties. Third, the affidavits of Larry

Wilson, Shelby County Code Enforcement Officer, Curt Wilson,

business representative of the International Union of Elevator

Constructors, Billy Keith Wilson, employee of Dover Elevator

Company and Mark Ward, Director of Operations and Maintenance for

St. Jude Hospital in Memphis, Tennessee, stating that George

Robbins (and later Bill Batts) began performing the duties once

performed by George Dulin support Dover Elevator’s assertion that

other employees took over appellant’s former duties.1

Appellant cites several cases in support of his argument

that he was replaced. First, appellant cites Gallo v. Prudential

Residential Serv. LTD. Partnership, 22 F.3d 1219 (2nd Cir. 1994).

In Gallo, unlike the present case, the employer’s policy and

procedure manual required that Gallo be considered for a transfer.2

Additionally, the employer refused to consider Gallo when she

applied for the new position it created by resurrecting Gallo’s

former position and, instead, hired a much younger new employee.
7

Here, Dover Elevator did not hire a new employee to take

appellant’s place.

Second, appellant cites Moody v. Pepsi Cola Metro.

Bottling Co., 915 F.2d 201 (6th Cir. 1990). In this case, the

employer’s stated reason for termination was a reduction in force,

but after plaintiff’s termination the employer had only one less

employee than before. Later the employer tried to claim that Moody

had been discharged for poor work performance. Here, appellant was

told that it was only his job that was being eliminated and

appellee has never claimed otherwise.

In contrast to the cases cited by appellant, applicable

case law holds that when an employee’s position has been eliminated

and the job duties reassigned to existing employees, that employee

has not been replaced. See Smith v. F.W. Morse & Co., 76 F.3d 413,

423 (1st Cir. 1996) (finding that a position elimination defense is

not defeated merely because another employee, already on the

payroll, is designated to carry out some or all of the discharged

employee’s duties in addition to his own, or because those duties

are otherwise reallocated within the existing work force); Barnes

v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (finding

that a person is not replaced when another employee is assigned to

perform the plaintiff’s duties in addition to their other duties,

or when the work is redistributed among other existing employees

already performing related work).
3 In his brief, appellant does not draw a distinction

between the alternative arguments to establish his prima facie

case.

4 In his brief, appellant raises such fact issues as

whether appellee suffered overall financial loses in 1994-96 and

that he was not offered a lateral transfer to another position.

These points would be better argued in an attempt to show that

appellee’s stated reasons for appellant’s termination were not the

true reasons, but a pretext for age discrimination. At any rate,

the evidence on record shows that Dover Elevator did suffer losses

in the construction division in 1994-96. Further, appellant has

offered no proof that Dover Elevator was required by its company

policies and procedures to offer appellant a transfer or that any

such positions were available and that a transfer was requested by

appellant. 

8

This court agreed with the basic reasoning of the First

and Sixth Circuits in Armendariz v. Pinkerton Tobacco Co., 58 F.3d

144 (5th Cir. 1995). In Armendariz, the appellant’s sales job

covering specific territory was eliminated. Part of the territory

was given to another salesperson while the remaining territory was

taken over by an independent broker. This court found that the

employer had properly characterized the appellant’s termination as

a “reduction in force” or “job elimination.” See id. at 150.

In the alternative, to prove the fourth element of his

prima facie case for age discrimination, the appellant may offer

evidence to prove that he was otherwise discharged because of age.3

The district court found that the only evidence that appellant

could offer to prove he was discharged because of age was his own

subjective belief.4
9

Because we find that the appellant has failed to

establish the fourth element of his prime facie case, it is not

necessary to proceed further in our analysis.

III. CONCLUSION

Because plaintiff-appellant has failed to establish his

prima facie case for age discrimination, we affirm.

AFFIRMED.