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United States Court of Appeals

Fifth Circuit

FILED

July 12, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20956

PHILIP BERQUIST,

Plaintiff-Appellant,

versus

WASHINGTON MUTUAL BANK,

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This appeal arisesfromthe district court’s grant ofsummaryjudgment in favor ofWashington

MutualBank (“Washington Mutual”) on Philip Berquist’s claimof age discrimination. We affirm the

district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Berquist began his career working in the internal audit department of United Savings Bank.

In 1992, Bank United acquired United Savings Bank, which retained Berquist as an employee.

Berquist received several promotions during his tenure with United Savings Bank and Bank United.

In 2000, Bank United merged with Washington Mutual. Washington Mutual asked Berquist to stay
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an additional nine months after 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,WashingtonMutualofferedBerquist a permanent position.

Berquist held the position of “Senior Credit Examiner, Loan Review Department, Corporate Credit

Risk Management.” Berquist alleges that he was qualified for the new position, he received “exceeds

expectations” performance evaluations in 2001 and early 2002, and he never received written or

verbal notices criticizing hisjob performance. In September 2002, Washington Mutual hired Melissa

Martinez to supervise the 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

throughout the deterioration of his employment relationship with the bank.

In November 2002, the bank decided to transfer Berquist’s then-current job functions from

Houston, Texas, to Seattle, Washington. In light of this business decision, Washington Mutual

offered Berquist a different job in the credit review department. Washington Mutual contends that

Berquist’s work tasks, prior to November 2002, only involved operational and administrative duties.

After this date, Berquist’s job duties required credit review skills. Martinez asked Berquist to work

on the “review and approval” of unissued loan reports. Berquist accepted this job position and

exclusively focused on “review and approval” work from early November 2002 to February 6, 2003.

In late 2002, the credit review department of the Houston office was staffed byBerquist, age

54, Ron Yancis, age 56, Donald Plaisance, age 39, and Karl Zatopek, age 41. Berquist and Yancis

worked in the Commercial Banking Group (“CBG”) under the management of Robert Granfelt.

Plaisance and Zatopek worked in the Specialty Finance Group (“SFG”) under the management of

Cynthia Hart, and later under the immediate supervision of Scott Frazee. Frazee’s counterpart
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position in CBG remained vacant, and therefore, Frazee acted asthe administrative manager for both

groups. 

During a December 2002 conference call, Berquist alleges that Martinez said, “Performance

issues will be promptly and aggressively dealt with. We will build leaders internally and attract

younger talent.” On February 6, 2003, Martinez reported to Berquist that she was “very unhappy”

with the Houston office’s production. Shortly thereafter, Martinez issued Berquist a performance

improvement notice (“PIN”), criticizing Berquist’s allegedly negative attitude, poor communication

skills, and below standard work product. The PIN also alleged that Berquist’s “[t]echnical skills and

proficiencies are ‘operational’in nature and not commensuratewiththe jobfunction,CCR[Corporate

Credit Review] focus, or those required for a Credit Review Officer.” 

In response to the 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 that his work experience before the merger was “strictly in an administrative and

operationalrole,” and based on his understanding, Washington Mutual asked him to remain with the

bank to “continue in [his] administrative and operational duties.” Further, Berquist adds that “I have

never at any time represented to anyone that I have specific expertise in credit review since my

responsibilities at both Bank United and [Washington Mutual] were solely of an administrative and

operational nature.” 

On May 14, 2003, Martinez told Berquist that his skills and proficiencies were no longer

needed in the 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. 
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On June 9, Washington Mutual offered 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

off in conjunction with a reorganization of the CBG. Washington Mutual contends that it decided

for business reasons to eliminate the CBG function in Houston and transfer the group to Seattle or

California because the 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 violation of the Age Discrimination

in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”), and Washington Mutual moved

for summary judgment. The district court granted Washington Mutual’s motion. The court

concluded that Berquist failed to establish a prima facie case of wrongful termination based on age

discrimination because the record lacked evidence of Berquist’s qualifications for his position.

Additionally, the court concluded that Berquist failed to establish a prima facie case of “reduction in

force” based on unlawful age discrimination because the record lacked evidence of Berquist being

qualified for another position in the company. Berquist does not appeal the district court’s holding

on his claimofreductionin force based on unlawful age discrimination; therefore, we address whether

the district court properly granted summary judgment on his wrongful termination claim.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, applying the same legal

standards asthe district court. Machinchick v. P.B. Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).

In deciding a motion forsummaryjudgment, the court must determine whether the submissionsshow

that there is no genuine issue asto any materialfact and that the moving 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
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deciding whether a fact issue has been created, the facts and inferences to be drawn from them must

be reviewed in the light most favorable to the nonmoving party. Reeves Brokerage Co. v. Sunbelt

Fruit &Vegetable Co., 336 F.3d 410, 412 (5thCir. 2003). “Even if we do not agree with the reasons

given by the district court to support summary judgment, we may affirm the district court’sruling on

any grounds supported by the record.” Lifecare 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 for an employer . . . 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). To establish

a prima facie case of age discrimination, “a plaintiff must show that (1) he was discharged;(2) he was

qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he

was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or

iii) otherwise discharged because of his age.” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th

Cir. 2004) (internal quotations and citations omitted); 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 terminated from his

position and he was a member of the protected class at the time of discharge. With respect to the

remaining elements, we first determine whether Berquist fulfilled the second component of a prima

facie case, demonstrating his qualifications for the position of a credit review officer.

A. Whether Berquist was Qualified for the Position
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According to Berquist, he met the objective criteria listed in a job posting for credit review

officers and held the title of “credit examiner” for two years after the merger. Berquist contends that

he has performed the same job since 1994, which includes the operational, audit, and administrative

areas of credit review. To the contrary, Washington Mutual argues that absent the reorganization

eliminating Berquist’s job function, Berquist still could not have remained in his position as a credit

review officer. Washington Mutual explains that Berquist lacked any background and experience in

credit process review; instead, Berquist only held internal audit positions during his seventeen years

at United Savings Bank and Bank United. Washington Mutual maintains that Berquist’s prior work

experience included cataloging the risk grades of Bank United loans and preparing audit committee

reports. 

The district court concluded that Berquist was not qualified for his position at Washington

Mutual because “the fact that Berquist was given the position of Credit Review Officer in the first

place [does not] constitute evidence that he was qualified. To hold otherwise would be to eliminate

the qualification element in every case involving termination.” The district court’s conclusion was

error and expressly foreclosed under Fifth Circuit precedent established in Bienkowski v. American

Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988). The record does not reflect that the district court

considered Bienkowski in its analysis of Berquist’s claim; similarly, Washington Mutual did not

address Bienkowski in its brief to this court. 

In Bienkowski, an employer alleged that the plaintiff was not qualified for hisjob as a security

representative, even though his performance had been satisfactory for ten years, “because his

supervisors became unsatisfied with his work.” Id. at 1504-05. The employer submitted two

affidavitsfrom the plaintiff’ssupervisors documenting a decline in his performance. Id. at 1505. The
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employer argued that under the McDonnell Douglas test, the plaintiff must prove that he performed

his job to the standards of his employer. Id. Thus, the plaintiff failed to establish a prima facie case.

Id. This court reasoned that

[A ] plaintiff challenging his termination or demotion . . . can ordinarily establish a

prima facie case of age discrimination by showing that he continued to possess the

necessary qualifications for his job at the time of the adverse action. . . . 

By this we mean that plaintiff had not suffered physical disability or loss of a

necessary professional license or some other occurrence that rendered him unfit for

the position for which he was hired.

Id. at 1506 & n.3. The court established this rule in order to simplify application of the McDonnell

Douglas paradigm in the context of termination and demotion cases. The court concluded that in

applying this reasoning, “[t]he lines 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. 

After the merger, Berquist monitored the process of conforming Bank United’s risk ratings

to WashingtonMutual’srating system. Once Berquist completed the conversion, Washington Mutual

assigned Berquist to a credit process review position. Washington Mutual interprets Berquist’s

response to the PIN issued in March 2003, reiterating his skills in the operational and administrative

side of credit review, as an admission that he lacked qualifications in the credit review arena.

Washington Mutual characterizes his statements as “undisputed evidence,” demonstrating that

“[Berquist] did not have the skills, experience and background for 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.

Similarto the plaintiffinBienkowski, however, Berquist possessed the same job qualifications

when Washington Mutual terminated him as when Martinez assigned him to the credit review
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position. Accordingly, Berquist need not show that his performance met Washington Mutual’s

expectations to establish a prima facie case. Although Washington Mutual submitted evidence that

Berquist’s supervisors were not pleased with his performance, this evidence does not prove a lack

of qualifications at the prima facie stage. See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681

(5th Cir. 2001) (holding that 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 discriminatory); Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993) (holding

that it is not appropriate for the district court to determine whether subjective criteria are bona fide,

in effect making dispositive determinations about the employer’s credibility, on summary judgment).

As aptly stated in Bienkowski, “[p]lacing a plaintiff’s ‘qualifications’ in issue at both the prima facie

[] and pretext stages of a termination case is an unnecessary redundancy.” Id. at 1505. Therefore,

for the limited purposes of establishing a prima facie case, Berquist demonstrated that 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 discrimination requires Berquist to

show that he was replaced by someone outside the protected class, replaced by someone younger,

or otherwise discharged because of his age. Rachid, 376 F.3d at 309. The district court did not

reach thisissue, but the parties presented arguments on thisfinal element before the district court and

this court on appeal. 

As a starting point, the record does not support a finding that Berquist was replaced by

someone either outside the protected class or bysomeone younger than himself. Berquist argues that

Washington Mutual’s decision to terminate him and Yancis, the two older employeesin the Houston
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office, while offering the younger Plaisance and Zatopek the option oftransferring to the Dallas office

proves age discrimination. The undisputed facts surrounding Berquist’s job function and Washington

Mutual’s reorganization, however, do not demonstrate that Berquist was replaced by Plaisance 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 California. Moreover, Berquist presented no evidence to show who Washington

Mutual hired to work in the California office. Therefore, the 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. Direct Evidence

Berquist asserts that Martinez’s comments regarding the desire to “attract younger talent,”

and her reference to Plaisance and Zatopek asthe “younger” credit review officers,support his claim

of age discrimination. Direct evidence proves intentional discrimination without inference or

presumption when believed by the trier of fact. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,

897 (5thCir. 2002). It “includes any statement or written document showing a discriminatory motive

on itsface.” Fierros v. Tex. Dep’t of Heath, 274 F.3d 187, 195 (5th Cir. 2001) (citing Portis v. First

Nat. Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994)). Stray remarks evince unlawful

discrimination only if the comments “first, demonstrate discriminatory animus and, second, [are] made

by a person primarily responsible for the adverse employment action or by a person with influence

or leverage over the formal 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 comments do not constitute direct evidence of age discrimination. 
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Martinez made the first comment regarding younger talent in December 2002, six months

before Washington Mutual terminated Berquist, and the comment does not at all relate to this

employment decision. According to Berquist’s contemporaneous transcription of the comment,

Martinez stated that “Performance issues will be promptly and aggressively dealt with. We will build

leaders internally and attract younger talent.” Washington Mutual contends that regardless of

whether Martinez expressed an intention to attract younger talent, this stray remark was too vague

and remote in time to show any discriminatory animus on the part of Washington Mutual in

terminating Berquist. 

Martinez made no mention of replacing older employees with younger recruits or directly

hiring younger employees into leadership positions. See Rachid, 376 F.3d at 315 (holding that

employers comments regarding employee being too old for the position constituted evidence of age

discrimination); Bienkowski, 851 F.2d at 1506-07 (holding that commentsrequiring the employee to

look “sharp” and criticizing an inability to adapt to new procedures constituted evidence of age

discrimination). Instead, this comment was apparently broad statement not directed to any particular

employee about her management goals. Accordingly, in this context, we conclude that this statement

is a stray remark, not direct evidence of age discrimination.

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 Plaisance and Zatopek withBerquist, the “senior employee” in the department. In his role

as the senior employee, Martinez expected Berquist to provide leadership for the inexperienced

members of the 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 
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The criticism mentioned repeatedly on March 4 fromMs. Martinez and Ms. Hart was

that I did not notify them of the lack of desk reviews being sent to Houston to be

performed “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 that I was a “senior officer” in this office and that other two employees in the

department besides former Regional Manager Ron Yancis and myself were

inexperienced young men who needed leadership.

Based on Berquist’s personal impressions of the statement, we decline to characterize this comment

as anything more than a stray comment unrelated to an unlawful discriminatory animus. Both

statements are consistent with Washington Mutual’s stated commitment to build leaders internally

based on available resources within the corporation. Accordingly, Martinez’s comments are not

sufficient evidence of age discrimination.

2. Circumstantial Evidence

In addition to the above remarks, as stated supra, Berquist contends that Washington

Mutual’s decision to terminate himand Yancis, the two older Houston employees, while offering the

younger Plaisance and Zatopek the option of transferring to the Dallas office further supports his

claim of age discrimination. According to Berquist, all four employees were performing the same

SFG work at the time of histermination. Berquist also maintains that Washington Mutual’s age bias

prompted Martinez to issue only the older employees a PIN. Berquist contends that Washington

Mutual then suggested an internal transfer to resolve his employment issues but refused to facilitate

this action because Martinez would not downgrade his PIN. 

Washington Mutual contends that the disparate treatment of Berquist and the younger

employees, Plaisance and Zatopek, was based on the differing job functions performed bythe two sets

of employees. Washington Mutual argues that, although Berquist performed overflow work from
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SFG, everyone in Houston pitched in to work on SFG’s reports during downtime. Plaisance and

Zatopek were the only two employees, however, with years of experience in this specialty area.

In disparate treatment cases, the plaintiff-employee must show “nearly identical”

circumstances for employees to be considered similarly situated. Perez 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 jobs after the Bank United-Washington Mutual merger.

Berquist initially stayed with the bank, at the request of Don Dahrens, for the specific purpose of

assisting with the conversion ofBank United’srisk grading systemfor loansto Washington Mutual’s

system. In late October 2002, Washington Mutual moved this function to Seattle, Washington, and

Berquist no longer worked with converting the risk rating grids. 

Martinez then assigned Berquist to a national team reviewing a residential construction

portfolio. After the group’s first meeting, Martinez removed Berquist from the residential

construction portfolio and asked him to assist with the review and approval of credit reports. This

assignment involved clearing a large backlog of unissued loan review reports. At some point in early

March, Berquist began working on change request summaries (“CRS”). CRS’s require a

determination of whether to increase or decrease a customer’s credit rating based on a credit review.

In her deposition, Martinez explained that the CRS process wassegmented into 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

that would be allocated, and then Mr. Berquist may have been assigned those.” 

Martinez’s explanation comports with Berquist’s account of the work distribution. Berquist

testified that during slow periods, after receiving a stack of CRS’s in the mail, someone simply
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grabbed a stack of CRS’s without any regard to whether the files dealt with SFG or CBG loans.

Berquist also testified in his deposition that after receiving his PIN, the Houston group received an

email from either Martinez or Cynthia Hart, the SFG manager, announcing that Zatopek and

Plaisance were being permanently assigned to the SFG function. In this capacity, Zatopek and

Plaisance 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 the event of a workflow issue did these two employees report to Frazee as their

administrative supervisor. Frazee managed the tracking system of work assignments for the Houston

office. Finally, to this court, Berquist represented that he was initially assigned SFG work and then

assigned to the CBG position. Thus, the PIN and Berquist’s response to the PIN “pertained to [his]

SFG work, not the CBG position that Appellee alleges[he] was assigned after he was given his PIN.”

The explanations provided by Martinez and Berquist regarding the division of labor in the

Houston office demonstrate that Berquist was not similarly situated with Zatopek and Plaisance;

therefore, the employment decisions applied to Zatopek and Plaisance cannot be used to support

Berquist’s claimof age discrimination. Accordingly, based on the uncontroverted evidence, Berquist

cannot argue that Zatopek and Plaisance were similarly situated employees treated differently from

himself based on unlawful age discrimination. 

Berquist also arguesthat the PIN from Martinez accountsfor one additional peg in the series

of discriminatory events leading to his termination. Berquist asserts that the PIN supports his claim

of age discrimination because it directly conflicts with verbal conversations between himself and

Martinez, and only the two older employees, himself and Yancis, received a notice. Berquist also
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maintains that Frazee refused to participate in the PIN because he did not agree with Martinez’s

performance assessment. 

In early 2003, the Corporate Credit Review department of Washington Mutual consisted of

seventy-one percent of employees over 40, and thirty-seven percent of employees over 50. During

the reorganization, Martinez issued PIN’s to only five employees under her management. Based on

Berquist’s admission that he lacked skills in SFG review, his then-current position, it is difficult to

interpret the negative evaluation as motivated by age discrimination. On February 27, 2003, Berquist

sent an email to Martinez attempting to carve out a position better suited for his operational and

administrative skill sets. In the message, Berquist listed his prior work experience and states the

following:

As you know, my overall background has been in auditing and operational review. .

. . 

In our initial meeting last year, I told you that I really love doing operationalreviews.

I believe that thisis where my greatest strengths are. This is where I believe that I can

be of best value to you and the entire Corporate Credit Review organization of

Washington Mutual. . . . 

As you 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 dedicate my activities to these critical operational and

credit areasin Houston and their respective field offices. In addition to documenting

and reviewing all of the above operational activities as they relate to Credit Review,

I also could attend regular meetings of these groups as they relate to credit issues as

not only your representative, but for the team leaders as well.

Prior to the reorganization, and in response to his PIN dated March 4, Berquist wrote the following:

I have never at any time represented to anyone that I have specific expertise in credit

review since my responsibilities at both Bank United and Washington Mutual were

solely of an administrative and operational nature. At no time prior to March 4, 2003,

was I ever advised that my lack of experience in credit review was an impediment to

my continued employment and certainly not that it was grounds for termination. 
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In his deposition, Berquist once again confirmed that he has no specific expertise in credit review. 

To reconcile the admissionsin his PIN response and deposition, Berquist proffered that in his

opinion, “the skillsinvolved in financial and operational auditing involve some of the same skillsthat

are needed for corporate credit review. I believe that [] inquiries–requires an intuitiveness, a

curiosity, and an ability to read and understand financialstatements and documents.” Berquist never

presents evidence to refute the fact that the PIN accurately pinpoints his deficiencies in the credit

review skills necessary to be a SFG credit process reviewer.

Berquist also insinuates that Scott Frazee refused to participate in the March 2003 PIN

because he had no problems with Berquist’s work. To the contrary, Frazee explained in his

deposition that he didn’t participate in Martinez’s evaluation of Berquist because he didn’t have

firsthand 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

the 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 the basic concepts of credit review but lacked the capability and background to provide

an appropriate assessment of more complex files.

Ironically, Martinez attempted to use the PIN as a gateway for securing Berquist’slong-term

employment at Washington Mutual in a department better suited for his self-identified skill sets.

Martinez and Julie Aydelotte, an employee relations manager, called Berquist to discuss a transfer

to another department within Washington Mutual. Berquist recorded and transcribed many of these

telephone conversations. In the initial discussion, on May 13, 2003, Martinez told Berquist that,
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What we want to discuss with you today and what we want you to think about is

really working with you to find, to see if we can find you another position within the

company. You know, your skill sets and the contribution that you could provide

Washington Mutual from a global basis, I definitely think there is some contribution

there. The issue really becomes are those skill sets what are needed in the Credit

Review function and I think at this point in time the answer is no. But I think we also

want to recognize the historical performance as far as your contribution to the

department and see what we can do to help you. 

Also in this conversation, Martinez discussed with Berquist a 45-day period to find another position

and her willingness to discuss the PIN with any interested managers within the company. Berquist

requested to receive his severance package offered during the acquisition period, but Aydelotte

explained that Berquist’s working for two years had negated the original severance plan. 

Over the next several weeks, Aydelotte and Berquist communicated regarding his search for

a new position and the severance package. Berquist resisted applying for another position because

(1) Martinez did not completely fill-out his transfer form, and (2) Berquist questioned his ability to

transfer in light ofthe company’s policy regarding employees with a negative performance evaluation

on file being ineligible for a transfer. Aydelotte advised Berquist that “[w]hat you need to do is to

apply on-line if you find something that you are interested in and then we can work through this part

with the recruiters.” Aydelotte testified in her deposition that, “in the conversation Melissa had with

Phil on the May 13th, was that she would authorize a transfer, that it was okay for him to look

internally for a position that bettersuited his experience, and that if he found something I would work

with a recruiter and that she would approve him to transfer.” On June 10, 2003, Aydelotte offered

Berquist the requested 38-weeksseverance package in the form of a separation agreement. Berquist

refused the offer because the paperwork included a confidential settlement and release agreement.
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Based on this evidence, confirmed and undisputed byBerquist on the pertinent points, the PIN

highlighted his self-acknowledged lack of experience with credit review. Washington Mutual

documented this skill deficiency, yet at the same time, attempted to retain Berquist in another

position. When Berquist refused to look for another position, Washington Mutual offered Berquist

a severance package identical to the amount offered at the time of the merger. Berquist then declined

this offer. 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 inconsistent statements that he was not

working in the SFG position at the time of his termination, he lacked the skills necessary to perform

the work assigned to Plaisance and Zatopek, and he refused to cooperate with Martinez’s and

Aydelotte’s attemptsto accommodate hisrequests. Based on this evidence, a reasonable trier of fact

could not determine that Washington Mutual otherwise discharged Berquist based on his age.

C. Legitimate, Non-discriminatory Reason for Discharge

If the plaintiff establishes a prima facie case, “the defendant then must articulate a legitimate,

non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its

burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of

material fact either (1) that the defendant's reason is not true, but is instead a pretext for

discrimination (pretext alternative); or (2) that the defendant's reason, while true, is only one of the

reasons for its conduct, and another “motivating factor” is the plaintiff's protected characteristic

(mixed-motive[s] alternative).” Rachid, 376 F.3d at 311 (internal quotations omitted).

Assuming arguendo that Berquist established a prima facie case of age discrimination, the

undisputed summary judgment evidence demonstrates that Washington Mutual undertook a major
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reorganization in the Corporate Credit Review department, which eliminated Berquist’s position.

Berquist fails to raise a genuine issue of material fact regarding the evidence presented to support

Washington Mutual’s legitimate, non-discriminatory reason for his termination. 

Martinez came to WashingtonMutualonSeptember 30, 2003, charged with the responsibility

of regenerating an underperforming group–develop a strategy and implement the appropriate

methodologies to execute the process. Washington Mutual hired Martinez after the acquisition of

Bank United and other banks across the country for the sole purpose of reorganizing the credit

department. 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 department, including the closing of certain offices and the creation of new positions.

In the December 9 meeting, Berquist recalls Martinez giving notice about a “formal [departmental]

reorganization that was going to take several months to complete.” In a second undated document,

entitled “Corporate Credit Review Business Objective, Houston Commercial Banking Team,”

Washington Mutual states that

[W]e have determined that the size of the commercial portfolio in Houston does not

justifyplacement ofresourcesin the localmarket. Additionally, Commercial Banking

business objectives have not identified the Houston market as a high growth area. As

a result, we have [made] the business decision to disengage Corporate Credit Review

in Houston and build up capabilities in California and New York to support existing

and planned growth within the Commercial Banking group.

On June 25, 2003, Berquist and Yancis, both employees ofCorporateCredit Review focusing

on commercial portfolios in Houston, were notified that their positions would be eliminated. After

announcing the decision to relocate the CBG function, both men were offered a severance package

with the option to be re-hired in another department. This offer required them to sign a release
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agreement. On September 29, 2003, Yancis, age 58, started a different position in Mortgage Banker

Finance with Washington Mutual, but Berquist chose not to accept the severance package.

Moreover, similarly situated employees willing to follow procedures were re-hired within other

departments. Shortly thereafter, in July 2003, the Corporate Credit Risk Management team in Seattle

also consolidated, and three positions were eliminated from this department. Two of the employees

over the age of forty, Phil Stanley, 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.