The Hon. Richard S. Arnold stepped down as Chief Judge of the United 1 States Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He has been succeeded by the Hon. Pasco M. Bowman II. The Hon. Robert W. Pratt, United States District Judge for the Southern 2 District of Iowa, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

______________ No. 97-3491

______________
Keith Hindman, * * Appellant, * Appeal from the United States * District Court for the Western
v. * District of Arkansas * Transkrit Corporation, * [PUBLISHED] * Appellee. *

_______________ Submitted: April 17, 1998 Filed: June 1, 1998

_______________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN, Circuit Judge, and 1 PRATT, District Judge.

2

______________ PRATT, District JudgeThe demotion caused Hindman’s wage rate to be decreased from $15.75 per 3 hour to $9.64 per hour. Additionally, the demotion had the potential to negatively impact on Hindman’s pension. There are nine collator machines in the collating department at Transkrit 4 which are used to assemble printed forms from rolls into multi-part business forms. It is the journeyman collator operator’s responsibility to set up the collator properly for a particular job, run the machine, and trouble-shoot any problems, with a minimum of spoilage of forms, and a minimum of downtime.
-2- Keith Hi ndman appeals from a final judgment entered in the United State s district court, granting summary judgment in favor of Transkrit Corporation, an d thereby dismissing his claim that he was demoted in violation of the Age Di scrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994). Hindman argues that the distric t court erred in finding “no evidence from which to conclude that plaintiff was replaced by a younger worker.” A review of the record persuades us that the dist rict court erred on this issue. We therefore reverse.

I. BACKGROUND

The undisputed facts reveal that on March 1, 1996, at age 52, Keith Hindman (hereinafter Hindman) was demoted from his pos ition as journeyman collator operator 3 at Transk rit Corporation, a company which is in the business of manufacturing o r printing multi-part business forms. Hindman had worked at Transkrit’s Fort Smith 4 plant since the fall of 1984, worked as a journeyman collator operator fo r appr oximately eight years, and was the oldest worker holding his position at the time of hi s demotion. At all relevant times, Henry Eubanks (hereinafter Eubanks) wa s Hindman’s direct foreman and Gunner Lewald (hereinafter Lewald) was the dep artment manager for the collating department.
In his position as a journeyman collator operator, Hindman received performance reviews, at

least annually. These reviews, written by Eubanks, demonstrate that in all areas, excluding productivity, Hindman was favorably reviewed. He worked safely,Hindman maintains that his supervisors intentionally attempted to minimize 5 his production level in order to justify demoting him. He alleges, inter alia that Lewald selectively assigned him to jobs that would be less productive , that he was often assigned to work with many different and inexperienced collator helpers , and that in August of 1995, Eubanks began rotating him, on two week intervals, between a low productivity machine (number 4) and a higher productivity machine (number 7), thereby keeping his productivity rating average low. On one occasion, in December 1993, when his raise was held up due to 6 productivity, Lewald later reinstated the raise and adjusted it retroactively to the beginning of the year. Such utterances included, inter alia: “I don’t see how you can work the 7 twelve-hour shifts at your age” and “I don’t see how you climb around on the machine at your age.” Hindman Dep. at 109; App. at 0107

. Hindman Dep. at 112-13; App. at 109-10. 8
-3- main taineda good attitude, produced good quality forms, was knowledgeable, an d reliable. The reviews also demonstrate th at from September 1986, while Hindman was still in the position of collator operator trainee, until the l ast review before his demotion, Eubanks consistentl y advised Hindman that his production rating needed to improve. 5 Despite this criticism, however, Hindman c onsistently received a regular raise, and he 6 was never punished for this low productivity rating.
In his resistance to Transkrit’s motion for summary judgment, Hindman subm itted addition al evidence to support the ultimate issue of whether he was intentionall y discrim inatedagainst based on his age. In his deposition, Hindman testified tha t b e tween March and July of 1993, Eubanks regularly made age-derogatory statements to him. Eubanks also periodically suggested that Hindman find work e lsewhere, stating

7 that he could not understand how at his age Hindman wanted to do the work he wa s
cur rently doing. Hindman recalled two specific occasions where: (1) Eubank s suggested that h e become a Wal-Mart greeter; and (2) Eubanks brought in a classified advertisement for a loan-officer position and stated “that would probab ly be a real good, easy job for you.” Hindman also testified by affidavit that in February 8Hindman Aff. ¶ 22; App. at 0199. 9 Hindman Aff. ¶ 23; App. at 0199. 10 A “zero production” day is a day in which the operator does not produce 11 any forms during his or her shift. In other words, disassemble the machine, clean the shafts with emery cloth, 12 remove end-drive gears, reset, and reassemble the crimp unit.
-4- 1996, after Hindman injured his ankle at home, Lewald commented “you are too old to be climbing around like that, you should let younger people do it.” Further, upon 9 returni ng to work and saying to Eubanks that he hoped he would not need to hav e surgery, Eubanks responded, “at your age, I wouldn’t do that.” 10
The summary judgment record demonstrates tha t on or about February 23, 1996, prec ipitating Hindman’s demotion, Lewald reviewed the operators’ “L sheets” an d “make-ready sheets,” and disco vered that Hindman had a zero-production day on the 11 previou s day. Lewald questioned Eubanks about this occurrence and Eubank s responded by sending a memorandum discussing two zero-production days and tw o “hi gh spoilage” days which Hindman allegedly had in February 1996, an d recommending tha

t Hindman be demoted. As the circumstances surrounding the four days at issue are disputed, the court is required to view the facts in the light mos t favorable to Hindman.

On February 1, 1996, Lewald instructed Hindman to re-work the front en d 12 crimp unit of a machine. This work took a gre at deal of time as Hindman had to search for many parts not existing on the machine, and thus Hindman did not have time t o produce any forms during his shift. On February 22, 1996, Hindman came on afte r Dale Carter was half-way finished completing a changeover on a collator machine

. Hindman f

inished the changeover and completed the make-ready for the job. He thenA “check pack” is a sample test run of forms which is prepared by a collator 13 operator prior to beginning a production run. The check pack must meet specified guidelines in order to be approved for a production run. To “re-web” a machine, the operator is required to move some of the 14 equipment on the machine without running forms. It is interesting to note that after his shift was over, Hindman left the check 15 pack by his machine. The operator who replaced him presented it to John Glossenger, another supervisor, who approved the pack. Hindman Aff. ¶ 30; App. at 0204. 16 Hindman Aff. ¶ 31; App. at 0205. 17
-5- ran a check pack for the job and submitted it to Eubanks, with approximately fou r 13 hours left on his shift. Hindman waited for approximately thirty minutes b efore Eubanks eventually declined approval, and instead instructed Hindman to “r e-web the collator.” 14 As a result, Hi ndman spent the rest of his shift doing what he considered to be a n “unnecessary p artial make-ready on the machine,” and again was unable to produce 15 any forms. On February 24 , 1996, Hollis Graham (a Trainer) put Hindman on machine number 2, a machine that had already been run during the previous shift, and directed him to complete the run. Hindman did not conduct a “check pack” o n this machine prior to beginning production because it is “highly unusual for there to be defects since the prior run was acceptable.” Further, Hindman did not notice defects that occurred on 16 the forms beca use he was working at the back of the machine. Finally, according t o Hindman’s a ffidavit, “the other spoilage . . . was due to circumstances beyond m y control. The fact of the matter is that we simply ran out o f a part of the form which was necessary for completion.” 17

Based on the memorandum from Eu banks, Lewald recommended to Dale Hixon that Hindman be demoted. Hindman was then demoted, effective March 1, 1996.
Subsequent to his demotion, no person was newly hired to replace Hindman.Hindman Dep. at 123; App. 0303. 18
-6- Hindman alleges, however, that he was effectively replaced by several younger workers already e mployed by Transkrit. In his affidavit, he testified that younger collato r operators from oth er shifts stepped in to run machine number 4, the machine Hindman typically ran. He further testified that young trainees also operated machine number 4 after his de motion. Additionally, Hindman provided a list of individuals who worked

on his shift, but who were not covering for someone on vacation or otherwise absent. This li st contained specific names and dates. There is also deposition testimony b y Hindman th at “there were a number of people that replaced me . . . some under thirty, some under forty.” For example, he named David Criswell, Tom Newman, and Shawn 18 Hallum, and indicated that he believe d each of these individuals to be under thirty. In his deposition, he also testified to the approximate number of times each name d individual took over his duties. Hindm an initiated this suit against Transkrit in September of 1996, allegin g violation of the Age Discrimination in Employm ent Act (hereinafter ADEA), 29 U.S.C. § 6 21 et seq. On July 30, 1997, the district court entered summary judgment agains t Hindman, fin ding that Hindman could not make out a prima facie case of ag e discrimination. Hindman appeals from this decision.

II. STANDARD OF REVIEW

Th is court reviews a district court's grant of summary judgment de novo , applying the same standard as the district court. Hanenburg v. Principal Mut. Life Ins. C o
. , 118 F.3d 570, 573 (8th Cir. 1997); Barge v. Anheuser-Busch, Inc. , 87 F.3d 256, 258 (8th Cir. 1996). The court will find that summary judgment was properly granted when the record, viewed in the light mo st favorable to the nonmoving party, and giving that party t

he benefit of all reasonable inferences, shows that there is no genuine issue

o f material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. C iv. P. 56(c); Walsh v. United States , 31 F.3d 696, 698 (8th Cir. 1994); Unite d States v. City of Columbia, Mo

. , 914 F.2d 151, 153 (8th Cir.1990); Woodsmith Publ’gThis Court has previously determined that the McDonnell Douglas test, 19 which originated in the Title VII context, applies with equal force to ADEA cases. See Madel v. FCI Marketing, Inc. , 116 F.3d 1247, 1251 n.2 (8th Cir. 1997)( citing
-7- Co. v. Meredith Corp. , 904 F.2d 1244, 1247 (8th Cir.1990).

This court has repeatedly cautioned that summary judgment should seldom b e granted in the context of employment action s, as such actions are inherently fact based. See, e.g., Chock v. Northwest Airlin es Inc. , 113 F.3d 861, 863 (8th Cir. 1997); Hardin

v. Hussman Corp. , 45 F.3d 262, 264 (8th Cir. 1995); Crawford v. Runyon , 37 F.3 d 1338, 1341 (8th Cir. 1994). Summary judgment is not appropriate unless all th e evidence points one way and is susceptible to no reasonable inferences sustaining the posit ionof the nonmoving party. See Hardin , 45 F.3d at 262; Crawford , 37 F.3d a t 1341.

III. DISCUSSION
The ADEA prohibits an employer fro m discharging "any individual or otherwise discrim inat[ing] 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 ADEA protects individuals who are at least forty years old. See 29 U.S.C. § 631.

To establish a claim under the ADEA, a plaintiff must show that he or she was intentionally discriminated against by the defendant, based on age. See Ziegler v

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

v. McDonnell Douglas Corp. , 63 F.3d 771, 775 (8th Cir. 1995)); see also Rothmeier

v. Inv. A dvisers, Inc. , 85 F.3d 1328, 1331 (8th Cir. 1996). To survive a summar y judg ment motion, in a case which is not based on direct evidence of intentiona l discrimination, the plaintiff must rely on the McDonnell Douglas three-stage order of proof and presumptions. See generally McDonnell Douglas Corp. v. Green , 411 19Bashara v. Black Hills Corp. , 26 F.3d 820, 823 (8th Cir. 1994)). The Supreme

Court also has assumed, for now, that the test is applicable in these cases. See O’Connor v. Consolidated Coin Caterers Corp. , 517 U.S. 308, 311, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996). In fact, this court has phrased the requisite elements of the prima facie case 20 differently under differing circumstances. For example, in Williams v. Valentec Kisco, Inc. , 964 F.2d 723, 726 n. 2 (8th Cir.1992), the court stated that the fourth element of age discrimination is “that, after the discharge the position remained open and the employer continued to seek applications from persons with similar qualifications,” whereas in Kneibert v. Thomson Newspapers, Michigan, Inc. , 129 F.3d 444, 452 n.4 (8th Cir. 1997), the court formulated the same element as “that the employer did not take such action against nonmembers of the protected class.”
-8- U.S. 79 2, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny Texas Dep't o f Community Affairs v. Burdine , 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

First, the plaintiff must establish a prima facie case of age discrimination

. Generally, the plaintiff establishes this by producing evidence to show: (1) he or she is a member of a protected age group; (2) he or she was qualifi ed for the position he held; (3) despite his or her qualifications, he or she was demoted; and (4) he or she wa s replaced by a younger person. Ziegler , 133 F.3d at 675 (citing Hutson , 63 F.3d at 776) . However, the Supreme Court and this court have recognized t hat the prima facie case in discrimination suits varies somewhat with the specific facts of each case; the standard is not inflexible. See McDonnell Douglas , 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 20 n. 13 (noting that the standard, thou gh a useful yardstick, “is not necessarily applicable in every respect to differing factual situations”); see also Furnco Constr. Corp. v

. Waters , 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), (emphasizing that the prima facie case is n either "rigid" nor "mechanized" and that the primary focus is always whether an employer treat s an employee less favorably than other employees for an imp ermissible reason); accord Davenport v. Riverview Gardens Sch. Dist. , 30 F.3d 940, 944 (8th Cir. 1994). Further, the Supreme Court hasThe district court, upon determining that Hindman failed to establish the 21 fourth element of the prima facie case, did not evaluate the rest of the McDonnellDouglas burden shifting analysis. This court will thus focus its review on the issue of replacement.
See Dist. Ct. Mem. Op. at 8, 9; App. at 0592-93

. 22 Id. at 9; App. at 0593. 23
-9- held that “[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Burdine , 450 U.S. at 253, 101 S.Ct. at 1094.
Once the plaintiff est ablishes a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for t he employment decision. Hutson , 63 F.3d at 776-77

. If the employer provides 21

a non-d iscriminatory reason, the presumption of discrimination disappears, and th e pl aintiff can only avoid summary judgment if he or she presents evidence tha t considered i n its entirety, (1) creates a question of material fact as to whether th e defendant's proffered reason s are pretextual and (2) creates a reasonable inference that age was a determinative factor in the ad verse employment decision. See Kneibert , 129 F.3d at 452 (citing Rothmeier , 85 F.3d at 1336-37). At all times, the plaintiff retains the burden of persuading the fact finder that intentional discrimination was the motivation for the adverse employment action. Rothmeier , 85 F.3d at 1337.

The district court correctly determined, and Transkrit concedes, that Hindma n met the first and third elements of the prima facie case of age discrimination: he was a member of the protec ted age group and he was demoted. Further, the district court 22 correctly concluded

there was a genuine issue of material fact as to whether Hindman

was qualifi ed for the position he held (i.e., he performed his job at a level that me t Transkrit's legitimate expectations). 23
The sole issue on appeal is whether or not Hindman met the fourth element ofIt is important to note that when asked on oral argument if this was a 24 reduction-in-force situation, Transkrit emphatically stated that it was not. Their response to the question, posed by the court, was simply that Hindman was demoted for cause. Hindman Dep. at 123; App. at 0303-305

. 25
-10- the prima facie case, whether he was replaced. The district court found: 24

No evidence from which to conclude that plaintiff was replaced by a younger worker. Plaintiff submits no evidence in support of his bar e contention that after his demotion, “younger” workers--both collato r operat ors and trainees -- performed his job duties. He has not provide d the dates, times, names or ages of persons who “temporarily” performed his job after his demotion; he cannot identify any person who w as assigned plaintiff’s job.

See Dist. Ct. Mem. Op. at 9, 10; App.0593-94.

This characterization of the record is erroneous. As stated above, “[t]he burden of establishing a prima facie case of dis parate treatment is not onerous." Burdine , 450 U.S. at 253, 101 S.Ct. at 1094. The summary judgment record plainly contains names of perso ns who temporarily performed Hindman’s job duties after his demotion an d dates on which they did so. Hindman, in his affidavit, lists a number of dates and times where specific individuals took over his job duties by working on his shift, and no t covering for an absentee, but rather acting as an additi onal collator. Additionally, in his depositi on testimony, Hindman lists the names of younger collator operators fro m other s hifts who stepped in to run machine number 4 after his demotion. Although, in the affidavit and deposition testim ony, Hindman did not specify the actual ages of such individuals, he did state that they were significantly younger; “some under thirty, some under forty.” 25

Additiona lly, Exhibit A of “Defendant’s Responses to Plaintiff’s First Set o f Interrogatories and Requests for Production,” which was attached to “Plaintiff’s-11-

Moti on and Brief to Compel Discovery,” contains the birth dates of all collato r operat ors, and thereby indicates the ages of some individuals who Hindman claim s replaced him . Transkrit argues that this exhibit was not made part of the summar y judg ment record and is therefore not properly considered by this court. The court , however, di sagrees, as this exhibit was specifically referred to on pages 3 and 4 o f Hindman’s “Memorandum Brief in Support Of Plaintiff’s Response in Opposition to Defendant’s Motion f

or Summary Judgment.” Thus, this exhibit is undoubtedly a part of the summary judgment rec ord, should have been considered by the lower court, and is now considered by this court.
Taken together, this e vidence goes well beyond a “bare contention that after his demotion, ‘younger’ workers -- both collator operators and trainees -- performed his job duties.” ( See Dist. Ct. Mem. Op. at 9; App.0593). Hindma n went beyond the pleadings and, by affidavit testimony, deposition testimony, and answers to interrogatories , designated specific facts showing that there is a genuine issue for trial regarding th e fourth element of his prima facie case. See Fed.R.Civ.Pro. 56(c),(e).
Although the traditionally stated elements of a prima facie case tend to indicate Hindmanwas required to show that he was actually replaced by one individual or that his position was still open and Tra nskrit was seeking a similarly qualified applicant, this court has previously recognized that the prima facie case in discrimination suits varies somewhat with the specific facts of each case. See, e.g., Ziegler , 133 F.3d at 675 ; Kneibert , 129 F.3d at 452 n.4; Williams , 964 F.2d at 726 n. 2; and Helfter , 115 F.3d at 618. Under the present factual circumstances, there certainly exists a question o f material fact, as to whether Transkrit actually used several other employees to take over Hindman’s responsibilities and thereby effectively replaced him. Obviously, if Hindman had been replaced by one single individual, that fact would be relevant in evaluatin g Tran skrit’s motive. Nevertheless, it is entirely conceivable to this court that an ADEA pla intiff who was demoted and effectively replaced by many individuals adopting hi s duties may still be able to establish that he was the object of impermissible discrimination related to his age. See Walker v. St. Anthony's Med. Ctr., 881 F.2d 554,The Court acknowledges some of these age-derogatory statements were 26 made approximately three years prior to Hindman’s demotion, however, we find that such statements may be relevant. “A plaintiff's ability to prove discrimination indirectly, circumstantially, must not be crippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance or excessive mistrust of juries.” Estes v. Dick Smith Ford, Inc. , 856 F.2d 1097, 1103 (8th Cir.1988). Such statements, even if not themselves actionable, may be deemed relevant as background evidence which if proven may assist Hindman in proving the ultimate issue of age discrimination. See White v. Honeywell , --- F.3d ---, ---, 1998 WL 181113 * 5 (8th Cir. 1998).

-12- 558 (8th Cir. 1989) (citing Giannotti v. Foundry Cafe , 582 F.Supp. 503, 50 6 (D.C onn.1984)). The court finds that the evidence regarding who replaced Hindma n pertains to weight of evidence rather than to legal sufficiency.

The ultimate inquiry in any discrimination suit is whether the plaintiff ha s established that a prohibited factor played a determinative role in the emp loyer's decision. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 824 n. 13 ; see also LeGrand

v. Trustees of Univ. of Arkansas , 821 F.2d 478, 480 (8th Cir. 1987). This court finds tha t Hindman has presented sufficient evidence on the issue of improper ag e discrimination. The court finds that in addition to the evidence he presented regarding his re placement, Hindman also offered evidence that his supervisors, Eubanks an d Lewald, both made age-derogatorycomments towards him in 1993 and 1996, and that 26 these same individuals intentionally manipulated his work sche dule in order to negatively impact his perf

ormance rating. Accordingly, the court finds that the district court erred in holding Hindman did not establish the fourth element of the prima facie case of ag e discrimination.

IV. CONCLUSION-13- For the reasons discusse d above, the order of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.

LOKEN, Circuit Judge, concurring.

I concur in the result.

A true copy.

Attest:

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