___________ No. 96-3442

____________

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. *

___________ Submitted: April 14, 1997 Filed: May 9, 1997

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

___________
HENLEY, Senior Circuit Judge.

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

### of Missouri.


## -2- In this age-discrimination action Daymon E. Brown appeals from a judgment of the district court granting summary judgment in favor o f 1 McDonnell Douglas Corporation (MDC). We affirm.

Brown worked for MDC from 1962 until December 1992, when he wa s 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 notic e and b egan interviewing for other positions in the company. Later tha t month, Ronald Ruethain, a group manager in business operations, interviewe d Brown for a position as a senior programs analyst. Ruethain told Brow n that becaus e of his high salary his chances of getting a raise or a promotion were "slim to none." Brown replied that he "could live wit h that ." Ruethain offered him the position. Brown accepted and bega n working i n Ruethain’s department in April 1992. At the time of hi s 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 woul d get a raise or promotion, "to achieve some goals to me was kind o f neg ative, when you knew it wasn’t going to come to anything except t o 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 improvem ent 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. Ruethai n believed that Brown lacked motivation and was "coasting, doing the absolut e min imumrequired to get by." According to Brown in discussing th e 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 differen t kind of work at a

### "Courts em ploy 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).


## -3- different company."

In August 1992, Ken Gumper, manager of business operations, informed Rue thain that there would be a RIF and instructed him to evaluate hi s employ ees according to a relative assessment process based on th e employee’s technical capability, skills applicat ions, personal commitment, and team building. Of the 144 employees Ruethain evaluated, Brown receive d the lowest score, a score of 19. Gumper received the scores and along wit h the c ompany’s RIF guidelines, the employee’s most recent documente d performance evaluation and five-year merit increase history, compiled a ranking. Brown was r anked the lowest and he and six other employees were selected for discharge.

Br own filed suit alleging age discrimination under the Ag e Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and th e Missouri Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010-213.095. The 2 dist rict court granted MDC’s motion for summary judgment. The cour t assumed that Brown had established a prima facie case of ag e disc rimination, but that MDC proffered a nondiscriminatory, legitimat e reason for the discharge -- the RIF and Brown’s low assessment score -- an d 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 tim e of discharge; (2) he or she satisfied the applicable jo b qualifications; (3) he or she was discharged; and (4) 'provide som e 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

## -4-

we are i nclined to agree with MDC that Brown did not establish a prim a facie case, like the district court, we will assume that he did. Also lik e the district court, w e 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 disputin g Ruetha in’s performance evaluation. For example, Brown asserts that h e never slept through a meeting and explains that he left early when he had nothi ng to do or had come in early and only read magazines that his ol d department had forwarded to him. We remind Brown that we do not "weigh th e wisdomof any particular employment decision." Ruby v. Springfield R-12 Pub. Sch. Dist , 76 F.3d 909, 912 n.7 (8th Cir. 1996). "The employmen t discrimination laws have not vested in the feder al courts the authority to sit as super-personnel departments reviewing the wisdom or the fairness of the business judgment s made by employers, except to the extent that those judgments involve intentional discrimination." Hutson v. McDonnell Dougla s Corp. , 63 F.3d 771, 7 81 (8th Cir. 1995). Contrary to Brown’s suggestion, the fact that in previous positions he had received positive evaluations is not ev idence that Ruethain was motivated by an age-based animus. I n Hutson , we explained that in a RIF a record of positive performanc e review s is generally unpersuasive evidence of age bias because "eve n cap able employees are released when an employer is down-sizing." Id. a t 779. Although there may be some circumstances "where evidence of [ ] competence nonetheless supports a finding of pretext because it casts doub t
on [a] low assessment score," id . at 780, this is not such a case. W e agr ee with MDC that evidence that Brown had performed satisfactorily i n 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 testimon y 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 inhere ntly discriminatory in an employer choosing to rely on recen t performance more heavily than past performance i n deciding which employees to terminate during a RIF." Id. at

## -5-

779. In addition, we note that Ruethain testified that at the time o f 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 statemen t that he "could have hired a young college graduate" at half of Brown’ s sala ry was direct evidence of age bias. In context, it is clear tha t Rue thain was concerned with Brown’s performance as compared to his hig h salary, no t as compared to his age. Even Brown understood Ruethain’ s comment to refer to his high salary. In response to the comment, Brow n replied that he had e arned the salary over thirty years time. See Bialas

v. Greyhound Lines, Inc. , 59 F.3d 759, 763 (8th Cir. 1995) (in contex t statement that people over 45 had difficulty adjusting to change was not evidence of age discrimination, but was expression of concern that manager s had resisted company’s efforts to reorganize). It is well settled tha t "[e]mployment decisio ns motivated by characteristics other than age (such as salary and pension benefits), even when such characteristics correlate with age, do not cons titute 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 bel ieve that Ruethain who had hired Brown at age 53 "suddenly developed an ave rsion 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." Hut son , 63 F .3d at 777. Although Brown notes that of the ten employees wh o received an assessment score of 40 or less the two youngest were no t terminated while s ix of the eight oldest were terminated, that evidence is "not of a sufficient 'kind and degree' to raise an inference" o f discrimination, especially given that Brown’s score was 19 and the tw o oldest emp loyees -- ages 64 and 57 -- were retained. Hanebrink , 1997 W L 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

## -6-

which workers to l ay off, . . . [Brown’s] statistical analysis ignores the per formance 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.