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No. 96-3442

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Daymon E. Brown, *

*

Appellant, *

 * 

Appeal from the United States

v. * District Court for the

 * Eastern District of

Missouri.

McDonnell Douglas Corporation, *

a Maryland corporation, *

 *

Appellee. * 

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Submitted: April 14, 1997

 Filed: May 9, 1997 

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Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM,

 Circuit Judge.

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HENLEY, Senior Circuit Judge.
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District 1

of Missouri. 

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In this age-discrimination action Daymon E. Brown appeals from a

judgment of the district court granting summary judgment in favor of

1

McDonnell Douglas Corporation (MDC). We affirm.

Brown worked for MDC from 1962 until December 1992, when he was

discharged at age 53 as part of a reduction in force (RIF). In March 1992,

Brown, who was working as a production engineer, was given a lay-off notice

and began interviewing for other positions in the company. Later that

month, Ronald Ruethain, a group manager in business operations, interviewed

Brown for a position as a senior programs analyst. Ruethain told Brown

that because of his high salary his chances of getting a raise or a

promotion were "slim to none." Brown replied that he "could live with

that." Ruethain offered him the position. Brown accepted and began

working in Ruethain’s department in April 1992. At the time of his

transfer, Brown was the highest paid employee in his work group. In his

deposition, Brown stated that because he knew it was unlikely that he would

get a raise or promotion, "to achieve some goals to me was kind of

negative, when you knew it wasn’t going to come to anything except to

achieve a goal. It was never going to have a payoff." 

Pursuant to a mid-year evaluation in July 1992, Ruethain rated Brown

as requiring improvement or needing corrective action on eleven of twelve

factors. In addition, Ruethain noted that Brown had been observed reading

magazines, sleeping at a meeting, and leaving work early. Ruethain

believed that Brown lacked motivation and was "coasting, doing the absolute

minimum required to get by." According to Brown in discussing the

evaluation, Ruethain "read [Brown] the riot act" and stated: "I could have

hired a young college graduate and paid [] half of what I’m paying you to

do that kind of work." Brown replied: "Well my salary has nothing to do

with this kind of work. I earned the salary over thirty years at different

kind of work at a 
"Courts employ the same analysis under both the ADEA and the MHRA." Kehoe v.

2

Anheuser-Busch, Inc., 96 F.3d 1095, 1101 n.8 (8th Cir. 1996).

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different company." 

In August 1992, Ken Gumper, manager of business operations, informed

Ruethain that there would be a RIF and instructed him to evaluate his

employees according to a relative assessment process based on the

employee’s technical capability, skills applications, personal commitment,

and team building. Of the 144 employees Ruethain evaluated, Brown received

the lowest score, a score of 19. Gumper received the scores and along with

the company’s RIF guidelines, the employee’s most recent documented

performance evaluation and five-year merit increase history, compiled a

ranking. Brown was ranked the lowest and he and six other employees were

selected for discharge.

Brown filed suit alleging age discrimination under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the

Missouri Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010-213.095. The 2

district court granted MDC’s motion for summary judgment. The court

assumed that Brown had established a prima facie case of age

discrimination, but that MDC proffered a nondiscriminatory, legitimate

reason for the discharge -- the RIF and Brown’s low assessment score -- and

Brown failed to offer any evidence to show that the reason was a pretext

for discrimination.

In order to establish a prima facie case in the context of a RIF, a

plaintiff "must show that: (1) he or she was at least 40 years old at the

time of discharge; (2) he or she satisfied the applicable job

qualifications; (3) he or she was discharged; and (4) 'provide some

additional showing that age was a factor in the termination.'" Aucutt v.

Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1316 (8th Cir. 1996)

(quoting Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 251 (8th Cir.

1995)). Although 
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we are inclined to agree with MDC that Brown did not establish a prima

facie case, like the district court, we will assume that he did. Also like

the district court, we agree with MDC that Brown did not present evidence

to show that MDC’s proffered reason for the discharge was a pretext for

discrimination.

Initially we note that Brown spends much of his brief disputing

Ruethain’s performance evaluation. For example, Brown asserts that he

never slept through a meeting and explains that he left early when he had

nothing to do or had come in early and only read magazines that his old

department had forwarded to him. We remind Brown that we do not "weigh the

wisdom of any particular employment decision." Ruby v. Springfield R-12

Pub. Sch. Dist, 76 F.3d 909, 912 n.7 (8th Cir. 1996). "The employment

discrimination laws have not vested in the federal courts the authority to

sit as super-personnel departments reviewing the wisdom or the fairness of

the business judgments made by employers, except to the extent that those

judgments involve intentional discrimination." Hutson v. McDonnell Douglas

Corp., 63 F.3d 771, 781 (8th Cir. 1995). Contrary to Brown’s suggestion,

the fact that in previous positions he had received positive evaluations

is not evidence that Ruethain was motivated by an age-based animus. In

Hutson, we explained that in a RIF a record of positive performance

reviews is generally unpersuasive evidence of age bias because "even

capable employees are released when an employer is down-sizing." Id. at

779. Although there may be some circumstances "where evidence of []

competence nonetheless supports a finding of pretext because it casts doubt

on [a] low assessment score," id. at 780, this is not such a case. We

agree with MDC that evidence that Brown had performed satisfactorily in

past positions does not cast doubt on Ruethain’s evaluation that Brown was

performing poorly due to a lack of motivation. Indeed, Ruethain’s belief

that Brown was "just coasting" is supported by Brown’s deposition testimony

that "to achieve some goals . . . was kind of negative, when you know it

. . . was never going to have a payoff." We note that "there is nothing

inherently discriminatory in an employer choosing to rely on recent

performance more heavily than past performance in deciding which employees

to terminate during a RIF." Id. at 
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779. In addition, we note that Ruethain testified that at the time of

evaluation he did not know of the impending RIF and Brown has presented no

evidence to create an issue of fact regarding Ruethain’s knowledge. 

We also reject Brown’s assertion that Ruethain’s alleged statement

that he "could have hired a young college graduate" at half of Brown’s

salary was direct evidence of age bias. In context, it is clear that

Ruethain was concerned with Brown’s performance as compared to his high

salary, not as compared to his age. Even Brown understood Ruethain’s

comment to refer to his high salary. In response to the comment, Brown

replied that he had earned the salary over thirty years time. See Bialas

v. Greyhound Lines, Inc., 59 F.3d 759, 763 (8th Cir. 1995) (in context

statement that people over 45 had difficulty adjusting to change was not

evidence of age discrimination, but was expression of concern that managers

had resisted company’s efforts to reorganize). It is well settled that

"[e]mployment decisions motivated by characteristics other than age (such

as salary and pension benefits), even when such characteristics correlate

with age, do not constitute age discrimination." Hanebrink v. Brown Shoe

Co.,1997 WL 174838, at *2 (8th Cir. Apr.14, 1997). In the circumstances

of this case, "[i]t is simply incredible" to believe that Ruethain who had

hired Brown at age 53 "suddenly developed an aversion to older people less

than [five months] later." Lowe v. J. B. Hunt Transport, Inc., 963 F.2d

173, 175 (8th Cir. 1992). 

In addition, Brown's "statistical evidence is not probative of pretext

in that it fails to analyze the treatment of comparable employees." Hutson,

63 F.3d at 777. Although Brown notes that of the ten employees who

received an assessment score of 40 or less the two youngest were not

terminated while six of the eight oldest were terminated, that evidence is

"not of a sufficient 'kind and degree' to raise an inference" of

discrimination, especially given that Brown’s score was 19 and the two

oldest employees -- ages 64 and 57 -- were retained. Hanebrink, 1997 WL

174838, at *2 (no inference of age discrimination where employer retained

two employees who were older than plaintiff). Moreover, and importantly,

because MDC "used performance evaluations to determine 
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which workers to lay off, . . . [Brown’s] statistical analysis ignores the

performance evaluations and, therefore, does not prove that [MDC’s]

explanation was pretextual." Nitschke, 68 F.3d at 252. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.