1 United States Court of Appeals Fifth Circuit 

## FILED August 31, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 05-20956

PHILIP BERQUIST, Pl aint iff- Appellant, versus WASHINGTON MUTUAL BANK, Defendant-Appellee.

On Appeal from the United States District Court fo r the Southern District of Texas

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges. CARL E. STEWART, Circuit Judge: We denied Appellant’s peti tion fo r panel rehearing. In response to the petition for rehearing, th e opinio n of th e court issued on July 12, 2007, at
--- F.3d —, 2007 WL 2007333 (5th Cir. 2007), is wit hdrawn, and the following is substituted. This appeal arises from th e district court’s grant of summary judgment in favor of Washington Mutual Bank (“Washington Mutual”) on Philip Berquist’s claim of age discriminat io n. We affirm t he district court’s judgment.2 I. FACTUAL AND PROCEDURAL BACKGROUND Berquist began his career working in the int ernal audit department of United Savings Bank. In 1992, Bank Unit ed acquired Unit ed Savings Bank, which retained Berquis t a s an employee. Berquist received several prom otions during his tenure wit h Unit ed Savings Bank and Bank Unit ed. In 2000, Bank Unit ed merged wit h Washington Mutual. Washington Mutual asked Berquist to stay

an additional nine mo nt hs aft er the merger to help consolidate the risk rating grids used in the two credit review departments. Berquist accepted this offer. Following this nine-month period, Washington Mutual of fered Berquist a permanent position. Berquist held th e position of “Senior Credit Examiner, Loan Review Departm ent, Corporate Credit Risk Management.” Berquist alleges that he was qualified for the new position, he received “exceeds expectations” performance evaluations in 2001 and earl y 2002, and he never received written or verbal notices criticizing his jo b performance. In September 2002, Washington Mutual hired Melissa Martinez to supervise th e bank’s credit review function, and in early 2003, promoted Martinez to Chief Credit Review Officer. Martinez served as the corporate manager of Berquist’s duties th roughout the deterioration of his employment relationship with the bank. In November 2002, the bank decided to transfer Berquist’s then-current jo b functions from Houston, Texas, to Seattle, Washington. In light of this business decision, Washington Mutual of fered Berquist a different job in the credit review departm ent. Washington Mutual contends that Berquist’s work tasks, prior to November 2002, only invo lved operational and administ rative duties. Aft er this date, Berquist’s jo b duties required credit review skills. Martinez asked Berquist to work

on th e “review and approval” of unissued lo an reports. Berquist accepted thi s jo b position and exclusively fo cused on “review and approval” work from early November 2002 to February 6, 2003.3

In lat e 2002, th e credit review departm ent of the Houston of

fice was staffed by Berquist, age 54, Ron Yancis, age 56, Donald Pl aisance, age 39, and Karl Zatopek, age 41. Berquist and Yancis worked in the Commerci al Banking Group (“CBG”) under the management of Robert Granfelt. Pl aisance and Zatopek worked in the Specialty Finance Group (“SFG”) under the management of C ynt hia Hart, and lat er under th e immediat e supervision of Scott Frazee. Frazee’s count erpart position in CBG remained vacant, and therefore, Frazee acted as the administ rative manager fo r both groups. During a December 2002 conference call, Berquist alleges th at Martinez said, “Performance issues will be prom

ptl y and aggressivel

y dealt with. We will build leaders internally and attract yo unger talent.” On February 6, 2003, Martinez reported to Berquist that she was “very unhappy” wit h th e Houston office’s production. Shortl y t hereafter, Martinez issued Berquist a performance improvement notice (“PIN”), criticizing Berquist’s allegedly negative atti tude, poor com

munication skills, and belo w standard work product. The PIN also alleged that Berquist’s “[t]echnical skills and prof iciencies are ‘operational’ in nature and not com mensurate wit h the jo b function, CCR [Corporate Credit Review] focus, or those required for a Credit Review Officer.” In response to th e PIN, Berquist asked for specific examples, which he never received from Martinez. Berquist denied every allegation of poor work performance in a written response. Berquist conceded th at his work experience before the merger was “strictl y in an administ rative and operational role,” and based on his understanding, Washington Mutual asked him to remain wit h the bank to “continue in [his] administ rative and operational duties.” Further, Berquist adds that “I have

never at any time represented t o anyone that I have specific expertise in credit review since my4

responsibilities at both Bank Unit ed and [Washington Mutual] were solely of an administ rative and operational nature.” On May 14, 2003, Martinez told Berquist that his skills and proficiencies were no longer needed in th e credit review function. Martinez allowed Berquist forty-five days to find a position in another department of Washington Mutual. Berquist asserts that he asked Martinez to downgrade his PIN so as to not prevent an internal transfer to another position, but she denied this request. On June 9, Washington Mutual of fered Berquist a separation proposal , which he refused to accept. Following this offer, on June 26, 2003, Martinez conveyed to Berquist that he would be laid of f in conjunction wit h a reorganization of the CBG. Washington Mutual contends that it decided fo r business reasons to eliminate the CBG function in Houston and transfer the group to Seattle or Califo rnia because th e West Coast handled a greater portion of the CBG’s asset base. Based on this avowed business decision, Berquist did not receive forty-five days to secure another position. Berquist filed suit against Washington Mutual alleging vio lat io n of the Age Discrim i nation in Emplo yment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”), and Washington Mutual moved fo r summary judgment. The di strict court granted Washington Mutual’s motion. The court concluded that Berquist failed t o establish a prima facie case of wrongful termination based on age discriminat io n because th e record lacke d evidence of Berquist’s qualifications for his position. Additionally, th e court concluded th at Berquist failed to establish a prima facie case of “reduction in fo rce” based on unlawful age discriminat io n because the record lacked evidence of Berquist being qualified fo r another position in t he company. Berquist does not appeal the district court’s holding

on his claim of reduction in fo rce based on unlawful age discriminat io n; therefore, we address whether th e district court properly granted summary judgment on his wrongful termination claim.5 II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo, applying t he same legal standards as th e district court. M achinchick v. P.B. Power, Inc. , 398 F.3d 345, 350 (5th Cir. 2005). In deciding a mo tion fo r summary judgment, the court must determ ine whether the submissio ns show th at th ere is no genuine issue as to any mat erial fact and th at the mo ving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Hart v. Hariston , 343 F.3d 762, 764 (5th Cir. 2003). In deciding whether a fact issue has been created, the facts and inferences to be drawn from them must be reviewed in th e light mo st favorable to the nonmoving party. Reeves Brokerage Co. v. Sunbelt Fruit & Vegetable Co. , 336 F.3d 410, 412 (5th Cir. 2003). “Even if we do not agree with the reasons given by th e district court to support summary judgment, we may affirm the district court’s rul ing on any groun ds supported by th e record.” L ifecare Hospitals, Inc. v. Health Plus of Louisiana , 418 F.3d 436, 439 (5th Cir. 2005) (citing Forsyth v. Barr , 19 F.3d 1527, 1534 n. 12 (5th Cir.1994)). III. DISCUSSION Under the ADEA, “[i]t shall be unlawful fo r an employer . . . to di scharge any individual or oth erwise discriminat e against any individual wit h respect to his com pensation, terms, conditions, or privileges of employment , because of such individual’s age.” 29 U.S.C. § 623(a)(1). “A plaintiff can demonstrate age discriminat io n in two w ays, either through: di rect evidence or by an indirect or inferential [circumstantial] met hod of proof .” Rachid v. Jack In The Box, Inc. , 376 F.3d 305, 309 (5th Cir. 2004). A plaintiff relying on circumstantial evidence must put forth a prima facie case , at which point th e burden shift s to th e employer to provide a legit imat e, non-discriminatory reason fo r th e employment decision

. W illis v. Coca Cola Enters., Inc ., 445 F.3d 413, 420 (5th Cir. 2006). If1 Berquist does not present direct evidence of discrimination. 6 a plaint iff produces direct evidence of discriminat io n, no further showing is required, and the burden shift s to the em

ployer. 1 Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121-22 (1985). To establish a prima facie case of age discriminat io n based on circumstanti al evidence, “a plaint iff must show th at (1) he was discharged; (2) he was qualified fo r the position; (3) he was wit hin th e protected class at th e time of discharge; and (4) he was eit her i) replaced by som eone outside the protected cl ass, ii) replaced by someone yo unger, or iii) otherwise discharged because of his age.” Rachid , 376 F.3d at 309 (int ernal quotations and cit ations om it ted); Palasota v. Haggar Clothing Co. , 342 F.3d 569, 575-76 (5th Cir. 2003). Berquist fulfills the first and third elements of a prima facie case: he was term

inat ed from his position and he was a member of the protected class at the time of discharge. Wit h respect to the remaining elements, we first determine whether Berquist fulfilled th e second com

ponent of a prima facie case, demonstrating his q ualificat io ns fo r the position of a credit review officer. A. Whether Berquist was Qualified for the Position According to Berquist, he met the objective criteria listed in a job posting for credit review of ficers and held th e ti

tle of “credit examiner” fo r two years aft er the merger. Berquist contends that he has performed th e same jo b since 1994, which includes the operational, audit, and administ rative areas of credit review. To the contrary , Washington Mutual argues that absent the reorganization eliminat ing Berquist’s jo b function, Berquist still could not have remained in his position as a credit review of ficer. Washington Mutual explains that Berquist lacked any background and experience in credit process review; inst ead, Berquist only held int ernal audit positions during his seventeen years at Unit ed Savings Bank and Bank Unit ed. Washington Mutual maintains that Berquist’s prior work7

experience included cataloging th e ri sk grades of Bank Unit ed lo ans and preparing audit com mit tee reports. The district court concluded th at Berquist was not qualified for his position at Washington Mutual because “t he fact th at Berquist was given the position of Credit Review Officer in the fir st place [does not] constitute evidence th at he was qualified. To hold otherwi se would be to eliminate th e qualification element in every case invo lving term inat io n.” The district court’s conclusion was

error and expressly fo reclosed under Fift h Circuit precedent established in Bienkow ski v. American Airlines, Inc. , 851 F.2d 1503 (5th Cir. 1988). The record does not reflect that the dist ri ct court considered Bienkow

ski in it s analysis of Berquist’s claim; similarly, Washington Mutual did not address Bienkow

ski in it s brief to this court. In Bienkow

ski , an employer alleged th at the plaint iff was not qualified fo r his jo b as a security representative, even th ough his performance had been sati sfactory fo r ten years, “bec ause hi s supervisors became unsatisfied wit h his work.” I d. at 1504-0 5

. The employer submitted two affidavit s from th e plaint iff’s supervisors docum enting a decline in his performance. I d. at 1505. The employer argued th at under th e McDonnell Douglas test, the plaint iff must prove th at he performed his jo b to th e standards of his employer. I d. Thus, the plaintiff failed to establish a prima facie case. Id. This court reasoned that [A ] plaint iff challenging his termination or demotion . . . can ordinarily establish a prima facie case of age discriminat io n by showing th at he continued to pos sess the necessary qualifications for his job at the time of the adverse action. . . . By t his we m

ean that plaintiff had not suffered physical disability or loss of a necessary professional license or some other occurrence that rendered him unfit fo r th e position for which he was hired.8

Id. at 1506 & n.3. The court established this rule in order to simplify application of the M cDonnell Dougl as paradigm in th e context of term inat io n and demotion cases. The court concluded that in applying t his reasoning, “[t]he l ines of battle may then be drawn over the employer’s articulated reason for its action and whether that reason is a pretext for age discrimination.” Id. at 1506. Aft er the merger, Berquist mo nit ored the process of conforming Bank United’s risk ratings to Washington Mutual’s rating syst em. Once Berquist completed the conversion, Washington Mutual assigned Berquist to a cr edit process review position. Washington Mutual interprets Berquist’s response to th e PIN issued in March 2003, reiterating his skills in the operational and administ rative side of credit review, as an admission th at he lacked q ualificat io ns in t he credit review arena. Washington Mutual characterizes his statem ents as “undisputed evidence, ” dem onstrating that “[Berquist] did not have th e skills, experience and background fo r credit review process work” at Washington Mutual. More specifically, Washington Mutual maintains that Berquist could not lead a credit review examination through origination, administration, and follow-up. Similar to th e plaint iff in Bienkow ski , however, Berquist possessed the same jo b qualifications when Washin gton Mutual term inat ed him as when Martinez assigned him to the credit review position. Accordingly, Berquist need not show that his performance met Washington Mutual’s expectations to establish a prima facie case. Alt hough Washington Mutual submitted evidence that Berquist’s supervisors were not pleased with his performance, this evidence does not prove a lack of qualifications at th e prima facie stage. S ee Medina v. Ramsey Steel Co., Inc. , 238 F.3d 674, 681 (5th Cir. 2001) (holding th at an employer may not utilize wholly subjective standards by which to judge its employees’ qualifications and then plead lack of qualification when its promotion process is challenged as discriminat ory); Lindsey v. Prive Corp ., 987 F.2d 324, 327 (5th Cir. 1993) (holding9

th at it is not appropri ate fo r th e district court to determ ine whether subjective criteria are bona fide, in effect making dispositive determ inat io ns about the employer’s credibilit y, on summary judgment). As aptl y stated in Bienkow

ski , “[p]lacing a plaint iff’s ‘qualifications’ in issue at both the prima facie [] and pretext stages of a term inat io n case is an unnecessary redundancy.” Id. at 1505. Therefore, fo r th e limit ed purposes of establishing a prima facie case, Berquist demonstrated th at he was qualified for his position.

B. Whether Berquist was Otherwise Discharged Because of His Age The final prong of establishing a prima facie case of age discriminat io n requires Berquist to show that he was replaced by som eone outside the protected cl ass, replaced by someone younger,

or oth erwise discharged because of his age. R achid , 376 F.3d at 309. The district court did not reach this issue, but th e parties presented arguments on this final element before the district court and this court on appeal. As a starting point , th e record does not support a finding th at Berqu ist was replaced by

som eone eit her outside th e protected class or by som eone yo unger th an himself. Berquist argues that Washington Mutual’s decision to term inat e him and Yancis, the two older employees in the Houston of fice, while of

fering th e yo unger Pl aisance and Zatopek the option of transferring to the Dallas of fice proves age discriminat io n. The undisputed facts surrounding Berquist’s job function and Washington Mutual’s reorganization, however, do not demonstrate th at Berquist was replaced by Pl aisance and Zatopek. As explained in greater detail below, Plaisance and Zatopek, the SFG credit process reviewers, remained in the Houston office for several months after Berquist’s CBG functions were transferred to Califo rnia. Moreover, Berqui st presented no evidence to show who Washington10

Mutual hired to work in th e Califo rnia of fice. Therefore, t he only path available for Berquist to establish a prima facie case is to show that he was “otherwise discharged because of his age.” Id

. 1. Martinez’s Remarks Berquist asserts that Martinez’s comments regarding the desire to “attract younger talent,” and her reference to Pl aisance and Zatopek as the “yo unger” credit review of ficers, support his claim of age discrimination. Statem ents evince unlawful discrimination only if the comments “first, demonstrate discriminat ory animus and, second, [are] made by a person primarily responsible fo r the adverse employment action or by a person wit h influence or leverage over the fo rmal decisionmaker.” Laxton v. Gap Inc. , 333 F.3d 572, 583 (5th Cir. 2003) (citing Russell v. McKinney Hosp. Venture , 235 F.3d 219, 225 (5th Cir. 2000)). Under this test, Martinez’s com ment s do not constitute evidence of age discrimination. Martinez made th e fir st com ment regarding yo unger talent in December 2002, six months before Washington Mutual term inat ed Ber quist, and the com ment does not at all r elate to this employment decision. According to Berquist’s contemporaneous transcription of the comment, Martinez stated th at “Performance issues will be prom ptl y and aggressively dealt wit h. We will build leaders int ernally and attract yo unger talent.” Washington Mutual co nt ends that regardless of whether Martinez expressed an int ention to attract younger talent, this remark was too vague and remote in time to show any discriminat ory animus on the part of Washington Mutual in term inat ing Berquist. Martinez made no m

ention of replacing older employees with younger recruits or directly hiring yo unger employees int o leadership positions. Unlike other cases in which we have considered remarks as evidence of discriminat ory int ent, this com ment was a broad statem

ent not directed to any11

particular employee about her management goal s and remote in time from Berquist’s f ir ing. S ee Machinchick v. PB Power, Inc. , 398 F.3d at 345, 353 (5th Cir. 2005) (supervisor sent e-mail, just weeks before term

inat ing plaint iff, discussing plans to “strategically hire som e yo unger engineers and designers”; supervisor said plaint iff was “inflexible” and “no t adaptable”); Rachid , 376 F.3d at 313, 315 (holding th at employer’s ageist com ment s “t o and about” employee constituted evidence of age discriminat io n); Bienkow

ski , 851 F.2d at 1507 n.4 (holding th at com ment s requiring the employee to lo ok “sharp” and criticizing an inabilit y to adapt to new procedures constituted evidence of age discriminat io n); Palasota , 342 F.3d at 576 (supervisor sent a memo randum, two mo nt hs before plaint iff’s term

inat io n , recom

me nding severance packages for fourteen named employees, all of whom

were specifically identified as over fifty years of age, to create “t he flexibilit y to bring on som e new players”). Accordingly, in t his context, we conclude that this statement is not evidence of age discriminat io n. As to Martinez’s reference to Plaisance and Zatopek as “younger” employees, Washington Mutual asserts, and Berquist offers no alternative interpretation, that Martinez made this comment to contrast Pl aisance and Zatopek wit h Berquist, the “senior employee” in the departm ent. In his role

as th e senior employee, Martinez expected Berquist to provide leade rshi p for the inexperienced members of th e group. Berquist provides a similarly harmless interpretation of this statement in his response to the PIN, which was written prior to this litigation. Berquist’s writes that The criticism ment io ned repeatedly on March 4 from Ms. Martinez and Ms. Hart was th at I did not notify th em o f t he lack of desk reviews being sent to Houston to be perf orm ed “by the young guys” in the Houston office. I responded that since I reported directly to Ron Yancis at the time, it was not in my work experience to “go over my boss’s head” directly to Credit Review management. . . . Ms. Martinez told me th at I was a “senior of ficer” in this of

fice and th at other two employees in the12

departm ent besides fo rm

er Regional Man ager Ron Yanci s and myself were inexperienced young men who needed leadership. Based on Berquist’s personal impressions of the statem ent, we decline to characterize this com ment

as anyt hing mo re th an a com ment unrelated to an unlawful discriminat ory animus. Both statem ents

are consistent wit h Washin gton Mutual ’s stated commitment to build leaders internally based on available resources wit hin th e corporation. Accordingly, Martinez’s comments are not sufficient evidence of age discrimination. 2. Other Circumstantial Evidence In addition to th e above remarks, as stated s upra , Berquist contends th at Washington Mutual’s decision to term inat e him and Yancis, the two older Houston employees, while of fering the yo un ger Pl aisance and Zatopek the option of transferring to the Dallas office further supports his claim of age discriminat io n. According to Berquist, all four employees were performing the same SFG work at th e time of his term inat io n. Berquist also maintains that Washington Mutual’s age bias prom pted Martinez to issue only th e older employees a PIN. Berquist contends that Washington Mutual th en suggested an int ernal transfer to resolve his employment issues but refused to facilit ate this action because Martinez would not downgrade his PIN. Washington Mutual contends th at the disparate treatm ent of Berquist and th e yo unger employees, Pl aisance and Zatopek, was based on the differing jo b functions performed by the two sets of employees. Washington Mutual argues that, although Berquist performed overflow work from SFG, everyone in Houston pit ched in to work on SFG’s reports during do wntime. Plaisance and Zatopek were the only two employees, however, with years of experience in this specialty area.13

In disparate treatm

ent cases, the plaint iff- employee must show “nearly identical” circumstances fo r employees to be considered similarly sit uated. P erez v. Tex. Dep’t of Criminal Justice , 395 F.3d 206, 210 (5th Cir. 2004) (quoting Little v. Republic Ref. Co. , 924 F.2d 93, 97 (5th Cir. 1991)). Berquist performed an array of jo bs aft er the Bank Unit ed-Washington Mutual merger. Berquist init ially stayed wit h th e bank, at the request of Don Dahrens, fo r the specific purpose of assisting wit h th e conversion of Bank Unit ed’s ri sk grading syst em fo r lo ans to Washington Mutual’s syst em. In late October 2002, Washington Mutual moved this function to Seattle, Washington, and Berquist no longer worked with converting the risk rating grids. Martinez th en assigned Berquist to a national team reviewing a residential construction portf ol io

. Aft er the group’s first meeting, Martinez removed Berquist fro m t he residential construction portf

ol io and asked him to assi st with the review and approval of credit reports. This assignment invo lved clearing a large backlog of unissued lo an review reports. At som e point in early March, Berquist began working on change request summaries (“CRS”). CRS’s require a determ inat io n of whether to increase or decrease a custom er’s credit rating based on a credit review. In her deposition, Martinez explained th at the CRS process was segmented int o two teams, the SFG and CBG. SFG handled a different business line from CBG, CBG involved a larger work load and larger assets under management. Martinez also stated that “[i]f there was overflow from SFG then th at would be allocated, and then Mr. Berquist may have been assigned those.” Martinez’s explanation com ports wit h Berquist’s account of the work distribution. Berquist testified th at during slow periods, after receiving a stack of CRS’s in the mail, someone simply grabbed a stack of CRS’s wit hou t any regard to whether the f iles dealt with SFG or CBG loans. Berquist also testified in his deposition th at aft er receiving his PIN, the Houston group received an14

email from eit her Martinez or C y nt hia Hart, the SFG manager, announcing th at Zatopek and Pl aisance were being permanentl y assigned to the SFG function. In this capacity, Zatopek and Pl aisance attended a national meeting concerning their duties in the SFG position. Berquist and Yancis did not attend this meeting. Moreover, Berquist and Yancis directly reported to Bob Granfelt, and only in th e event of a workflow i ssue did these two employees report to Frazee as their administ rative supervisor. Frazee managed the tracking system of work assignments for the Houston of fice. Finally, t o this court, Berquist represented that he was initially assigned SFG work and then assigned to th e CBG position. Thus, the PIN and Berquist’s response to the PIN “pertained to [his] SFG work, not th e CBG position th at Appellee alleges [he] was assigned aft er he was given his PIN.”

The explanations provided by Martinez and Berqu ist regarding the divisio n of labor in the Houston of

fice demonstrate th at Berquist was not similarly sit uated with Zatopek and Plaisance; th erefore, the em

ployment decisions applied to Zatopek and Plaisance cannot be used to suppo rt Berquist’s claim of age discriminat io n. Accordingly, based on the uncontroverted evidence, Berquist cannot argue that Zatopek and Plaisance were similarly sit uated employees treated differently from himself based on unlawful age discrimination. Berquist also argues th at th e PIN from Martinez accounts fo r one additional peg in the series of discriminat ory events leading to his term inat io n. Berquist asserts that the PIN supports his claim of age discriminat io n because it directly conflicts wit h verbal conversations between himself and Martinez, and only th e two older employees, himself and Yancis, received a n oti ce. Berquist also maint ains th at Frazee refused t o participate in the PIN because he did not agree with Martinez’s performance assessment.15

In early 2003, th e Corporate Credit Review departm ent of Washington Mutual consisted of seventy-one percent of employees over 40, and thirty-seven percent of employees over 50. During th e reorganization, Martinez issued PIN’s to only five employees under her management. Based on Berquist’s admission th at he lacked skills in SFG review, his then-current position, it is difficult to int erpret th e negative evaluation as mo tivated by age discriminat io n. On February 27, 2003, Berquist sent an email to Martinez attem pting to carve out a position better suited f or hi s operational and administ rative skill sets. In the message, Berquist list ed his prior work experience and states the fo llo wing: As yo u know, my overall background has been in auditing and operational review.

.

. . In our init ial meeting last year, I told yo u th at I really lo ve doing operational reviews. I believe th at this is where my greatest strengths are. This is where I believe that I can be of be st value to you and the entire Corporate Credit Review organization of Washington Mutual. . . . A s yo u are aware and can see from the above, there are extensive operations and credit activities located and headquartered in the Phoenix Tower [in Houston, TX]. I would like to volunteer to dedicat e my activities to these critical operational and credit areas in Houston and th eir respective field of fices. In addition to documenting and reviewing all o f t he above operational activit ies as they relate to Credit Review, I also could attend regular meetings of these groups as they relate to credit issues as not onl y yo ur representative, but for the team leaders as well. Prior to th e reorganization, and in response to his PIN dated March 4, Berquist wrote the fo llo wing: I have never at any time represented to anyo ne th at I have specific expertise in credit review since my responsibilities at both Bank Unit ed and Washington Mutual were solely of an administ rative and operational nature. At no time prior to March 4, 2003, was I ever advised th at my lack of experience in credit review was an impediment to my co nt inued employment and certainly not that it was grounds for termination. In his deposition, Berquist once again confirmed that he has no specific expertise in credit review. To reconcile th e admissions in his PIN response and deposition, Berquist prof fered th at in his16

opinio n, “t he skills invo lved in financial and operational auditing invo lve som e of the same skills th at

are needed fo r corporate credit review. I believe that [] inquiries–requires an intuit iveness, a curiosity, and an abilit y to read and understand financial statem ents and docum

ents.” Berquist never presents evidence to refute th e fact th at the PIN accurately pinpoints his deficiencies in t h e credit review skills necessary to be a SFG credit process reviewer. Berquist also insinuates that Scott Frazee ref used to participate in the March 2003 PIN because he had no problems wit h Berquist’s work. To the contrary , Frazee explained in his deposition th at he didn’t participate in Martinez’s evaluation of Berquist because he didn’t have fir sthand knowledge for the basis of her concerns and needed time to specifically assess Berquist’s work. Frazee described that a process reviewer leads the credit review and a file reviewer conducts th e necessary supporting file work. A process reviewer position typically requires at least four to five years of file review experience. Based on Berquist’s work product, Frazee assessed that Berquist understood th e basic concepts of credit review but lacked the capabilit y and background to provide an appropriate assessment of more complex files. Ironically, Martinez attem pted to use the PIN as a gateway fo r securing Berquist’s lo ng-term employment at Washington Mutual in a departm ent better suited fo r his self-identified skill sets. Martinez and Julie Aydelo tte, an employee relations manager, called Berquist to discuss a transfer to another departm

ent wit hin Washington Mutual. Berquist recorded and transcribed many of these telephone conversations. In the initial discussion, on May 13, 2003, Martinez told Berquist that, What we want to discuss wit h yo u tod ay and what we want you to think about is really working wit h yo u to find, to see if we can find yo u another position wit hin the com pany . You know, your skill set s and the contribution that you could provide Washington Mutual from a global basis, I definit ely think there is some contribution th ere. The issue really becomes are tho se skill sets what are needed in the Credit17

Review function and I think at this point in time the answer is no. But I think we also want to recognize th e hist orical performance as far as yo ur contri bution to the departm ent and see what we can do to help you. Also in this conversation, Martinez discussed wit h Berquist a 45-day period to find another position and her willingness to discuss the PIN with any interested managers within the com pany. Berquist requested to receive his severance package of fered during the acquisition period, but Aydelotte explained that Berquist’s working for two years had negated the original severance plan. Over th e next several weeks, Aydelo tte and Berquist com municated regarding his search fo r a new position and th e severance package. Berquist resisted applying for another position because (1) Martinez did not com

pletely fill-out his transfer form, and (2) Berquist questioned his ability to transfer in light of th e com pany’s pol

icy regarding employees wit h a negative performance evaluation on file being ineligible fo r a transfer. Aydelotte advised Berquist th at “[w]hat yo u need to do i s to apply on-l ine if yo u find som

ething th at yo u are int erested in and then we can work th rough this part wit h th e recruiters.” Aydelo tte testified in her deposition that, “in the conversation Melissa had with Phil o n t he May 13th, was that she would authorize a transfer, that it was okay for him to lo ok int ernally fo r a position th at better suited his experience, and th at if he fo und som ething I would work wit h a recruiter and th at she would approve him to transfer.” On June 10, 2003, Aydelotte offered Berquist th e requested 38-weeks severance package in the fo rm of a separation agreement. Berquist refused the offer because the paperwork included a confidential settlement and release agreement. Based on this evidence, confirmed and undisputed by Berquist on the pertinent point s, the PIN highlight ed his self-acknowledged lack of experience wit h credit rev iew. Washington Mutual docum ented this skill deficiency, yet at the same time, attem p ted to retain Berquist in another position. When Berquist refused to look for another position, Washington Mutual offered Berquist18

a severance package identical to th e amo unt of fered at the time of the merger. Berquist then declined this of fer. Berquist provides no evidence to diminish the veracity of Washington Mutual’s position

or to show a causal connection between Washington Mutual’s adverse employment action and his age. To the contrary , Berquist readily admits through inconsist ent statem ents that he was not working in th e SFG position at th e time of his term inat io n, he lacked the skills necessary to perform th e work assigned to Pl aisance and Zatopek, and he ref used to cooperate with Martinez’s and Aydelo tte’s attem

pts to accommodate his requests. Based on this evidence, a reasonable trier of fact could not determ

ine t hat Washington Mutual otherwise discharged Berquist based on his age. C. Legitimate, Non-discriminatory Reason for Discharge If th e plaint iff establishes a prima facie case, “t he defendant then must articulate a legit imat e, non-discriminatory reason fo r it s decision to term inat e the plaint iff; and, if the defendant meets i ts burden of production, th e plaint iff must then of fer sufficient evidence to create a genuine issue of mat erial fact eit her (1) th at th e defendant's reason is not true, but is inst ead a pretext fo r discriminat io n (pretext alternative); or (2) that the defendant's reason, while true, is only one of the reasons f or its conduct, and another “motivating factor” is the plaintiff's protected characteristic (m ixed-motive[s] alternative).” Rachid , 376 F.3d at 312 (internal quotations omitted). Assuming arguendo th at Berquist established a prima facie case of age discrimination, the undisputed summary judgment evidence demonstrates th at Washington Mutual undertook a majo r reorganization in t he Corporate Credit Review department, which eliminated Berquist’s position. Berquist fails to raise a genuine issue of mat erial fact regarding the evidence presented to support Washington Mutual’s legitimate, non-discriminatory reason for his termination.19

Martinez came to Washington Mutual on Septem ber 30, 2003, charged wit h the responsibility of regenerating an underperforming group–develop a st rategy and implement the appropriate met hodologies to execute th e process. Washington Mutual hired Martinez after the acquisition of Bank Unit ed and oth er banks across the country fo r the sole p urpose of reorganizing the credit departm ent. In a memo entitled “Corporate Credit Review: Organizational Realignment,” dated December 3, 2002, Washington Mutual provided an overview of the planned organization of the credit review departm

ent, including th e clo sing of certain offices and the creation of new positions. In the December 9 meeting, Berquist recalls Martinez giving notice about a “fo rmal [departm ental] reorganization th at was going to take several mo nt hs to com plete.” In a second undated document, entitled “Corporate Credit Review Business Objective, Ho u ston Com mercial Banking Team,” Washington Mutual states that [W]e have determ

ined th at th e size of the com mercial portf

ol io in Houston does not justify placement of resources in the lo cal market. Additionally, Commercial Banking business objectives have not identified the Houston market as a high growth area. As a result, we have [made] th e business decision to disengage Corporate Credit Review in Houston and build up capabilit ies in Califo rnia and New York to support existing and planned growth within the Commercial Banking group. On June 25, 2003, Berquist and Yancis, both employees of Corporate Credit Review fo cusing

on com mercial portf

ol io s in Houston, were notified t hat their positions would be eliminated. Aft er announcing th e decision to relocate th e CBG function, both men were of fered a severance package wit h t he option to be re-hired in another department. This offer required them to sign a release agreement. On September 29, 2003, Yancis, age 58, started a different position in Mortgage Banker Finance wit h Washington Mutual, but Berquist chose not to accept the severanc e package. Moreover, similarly sit uated employees willing to fo llo w procedures were re-hired wit hin other20

departm ents. Shortl

y t hereafter, in July 2003, the Corporate Credit Risk Management team in Seattle also consolidated, and th

ree positions were eliminat ed from this departm ent. Two of the employees

over th e a ge of forty, Phil S tanley, age 51, and Leone, age 58, accepted different positions with Washington Mutual. Berquist presented no evidence to contradict Washington Mutual’s legitimate, non-discriminatory reason for eliminating his position. IV. CONCLUSION For the foregoing reasons, we affirm the district court’s grant of summary judgment. AFFIRMED.