1 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, 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: 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.

I. FACTUAL AND PROCEDURAL BACKGROUND Berquist began his career working in the int ernal audit department of United Savings Bank. In 19 92, Bank United acquired United Savings Bank, which retained Berquist as 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 stay2

an additional nine mo nt hs aft er th e 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” p erformance eval uations in 2001 and early 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 job functions from Houston, Texas, to Seattle, Washington. In light of this business decision, Washington Mutual of fered Berquist a different job in th e 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 loan reports. Berqui st accepted this job position and exclusively fo cused on “review and approval” work from early November 2002 to February 6, 2003. 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 Com

m ercial Banking Group (“CBG”) under the management of Robert Granfelt. Pl ai sance and Zatopek worked in t he Specialty Finance Group (“SFG”) under the management of Cynt hia Hart, and lat er under the immediat e supervision of Scott Frazee. Frazee’s counterpart3

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

pt ly and aggressively dealt wit h. 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 t he Houston of

fice’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 that hi s work experience before the merger was “strictly in an administrative 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 to anyone that I have specific expertise in credit review since my responsibilities at both Bank Unit ed and [Washington Mutual] were solely of an administrative and operational nature.” On May 14, 2003, Martinez told Berquist th at h is 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.4

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. Berqu i st filed suit against Washington Mutual alleging vio lat io n of the Age Discriminat io n in Emplo yment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”), and Washington Mutual moved fo r sum mary judgm

ent. 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 dis c riminat io n because th e record lacked evidence of Berquist’s qualifications fo r 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 the 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. II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo, appl ying 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). In5

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 grounds 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 for an employer . .

. to discharge 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). To establish

a prima facie case of age discriminat io n, “a plaint iff must show th at (1) he was discharged; (2) he was qualified for th e 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) oth erwise discharged because of his age.” R achid v. Jack in the Box, Inc. , 376 F.3d 305, 309 (5th Cir. 2004) (int ernal quotations and citations omitted); Palasota v. Haggar Clothing Co. , 342 F.3d 569, 575-76 (5th Cir. 2003). Berquist fulfills th e fir st and thir d elements of a prima facie case: he was term inat ed from his position and he was a member of th e protected class at the time of discharge. Wit h respect to the remaining elements, we fir st determ ine 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 Position6

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 th at 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 work 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 that Berquist was not qualified fo r 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 involving termination.” The district court’s conclusion was
error and expressly foreclosed under Fifth Circuit precedent established in Bienkow ski v. American Airlines, Inc. , 851 F.2d 1503 (5th Cir. 1 988). The record does not ref lect that the district 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 repres entative, even though his performance had been satisfactory for ten years, “because his supe r viso rs became unsatisfied wit h his work.” I d. at 1504-05. The employer submitted two affidavit s from th e plaint iff’s supervisors docum enting a decline in his performance. I d. at 1505. The7

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 term inat io n or demotion . . . can ordinarily establish a prima facie case of age discriminat io n by showing th at he cont inued to possess the necessary qualifications for his job at the time of the adverse action. . . . By this we mean th at plaint iff had no t s uffered physical disability or loss of a necessary professional license or some other occurrence th at rendered him unfit for th e position for which he was hired. Id. at 1506 & n.3. The court established this rule in order to simplify application of the M cDonnell Douglas paradigm in th e context of term inat io n and demotion cases. The court concl uded that in applying this reasoning, “[t]he lines of battle may then be drawn over the em ployer’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 credit 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 re view, as an adm issio n t hat he lacked qualifications in the credit review arena. Washington Mutual characterizes his statem ents as “undisputed evidence,” demon strating that “[Berquist] did not have th e skill s, 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. Similar to th e plaint iff in Bienkow ski , however, Berquist possessed the same jo b qualifications when Washington Mutual term inat ed him as when Marti nez assigned him to the credit review8

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 wit h his performance, this evidence does not prove a l ack 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 ut ilize 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) (holding 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 termination case is an unnecessary redundancy.” I d. at 1505. Therefore, fo r th e limit ed purposes of establishing a prima facie case, Berq uist dem onstrated 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 th at he was replaced by someone outside the protected class, replaced by som eone yo unger,
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 Berquist 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 Houston9

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, Berquist presented no evidence to show who Washington Mutual hired to work in th e Califo rnia of fice. Therefore, the only path available fo r Berqui st 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 Pl aisance and Zatopek as the “yo unger” credit review of ficers, support his claim of age discriminat io n. Direct evidence proves intentional discrimination without inference or presumption when believed by th e trier of fact. Sandstad v. CB Richard Ellis, Inc. , 309 F.3d 893, 897 (5th Cir. 2002). It “includes any statement or written document showing a discriminatory motive

on it s face.” 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 discriminati

on only if t he comments “first, demonstrate discriminatory 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 th e fo rmal decisionmaker.” L axton v. Gap Inc. , 333 F.3d 572, 583 (5th Cir. 2003). (citing Russell v. McKinney Hosp. Ventu re , 235 F.3d 219, 225 (5th Cir. 2000)). Under this test, Martinez’s comments do not constitute direct evidence of age discrimination.10

Martinez made th e fir st com ment regarding yo unger talent in December 2002, six months before Washington Mutual term inat ed Berqui st, and the comment does not at all relate 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 contends that regardless o f whether Martinez expressed an intention to attract yo unger talent, this stray remark was too vague and remote in time to show any disc ri minatory animus on the part of Washington Mutual in term inat ing Berquist. Martinez made no ment io n of repl acing older employees with younger recruits or directly hiring yo unger em

ployees into leadership positions. S ee Rachid , 376 F.3d at 315 (holding th at employers com

ment s regarding employee being too old fo r the position constituted evidence of age discriminat io n); Bienkow

ski , 851 F.2d at 1506-07 (holding th at com ment s requiring the employee to lo ok “sharp” and criticizing an inabilit y to ad apt to new procedures constituted evidence of age discriminat io n). Instead, this comment was apparently broad statement not directed to any particular employee about her management goal s. 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 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 leaders hip 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 that11

The criticism ment io ned repeatedly on March 4 from Ms. Martinez and Ms. Hart was th at I did not notify th em of the la ck of desk reviews being sent to Houston to be performed “by th e yo ung guys” in the Houston of fice. 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 the departm ent besides fo rm

er Regional Manager 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 stray comment unrelated to an unlawful discriminatory animus. Both statem ents are consistent wit h Washington Mutual’s stated com mit ment to build leaders int ernally based on available resources wit hin t he corporation. Accordingly, Martinez’s comments are not sufficient evidence of age discrimination. 2. Circumstantial Evidence In addition to th e above remarks, as s tated supra , Berquist contends that Washington Mutual’s decision to term inat e him and Yancis, the two older Houston employees, while of fering the yo unger Pl aisance and Zatopek th e option of transferring to the Dallas office further supports his claim of age discriminat io n. Acco rding 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. Washingt on Mutual contends that the disparate treatment of Berquist and the younger 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 from12

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 treatm

ent cases, the plaint iff- employee must show “nearly id e nt ical” 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 Dahre n s, 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 from the residential construction portf

ol io and asked him to assist 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 slo w periods, aft er receiving a stack of CRS’s in the mail, someone simply13

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

emai l from eit her Martinez or Cynt hia Hart, the SFG manager, announcing th at Zatopek and Pl aisance were being permanently assigned to the SFG function. In this capacit y, Zatopek and Pl aisance attended a national meeting concerning their duties in t he 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 issue did these two employees report to Fraze e as thei r 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 Berquist regarding the division of labor in the Houston of

fice demonstrate that Berquist was not similarly situated with Zatopek and Plaisance; th erefore, th e employment decisions applied to Zatopek an d Plaisance cannot be used to support Berquist’s claim of age discriminat io n. Accordingly, based on the uncontroverted evidence, Berquist cannot argue that Zatopek and Pl aisance 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 discrimination because it directly conflicts with verbal conversations between himself and Martinez, and only th e two older employees, himself and Yancis, received a notice. Berquist also14

maint ains th at Frazee refused to participate in the PIN because he did not agree wi th Martinez’s performance assessment. 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 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 st ates 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 best value to you and the entire Corporate Credit Review organization of Washington Mutual. . . . As yo u are aware and can see from the above, there are extensive operations and credit activit ies lo cated and headquartered in the Phoenix Tower [in Houston, TX]. I would like to v olunteer to dedicate m y activities to these critical operational and credit areas in Houston and th eir respective field of fices. In addition to documenting and reviewing all of th e 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 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.15

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 his 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 rev iew. I believe that [] inquiries–requires an intuitiveness, a curiosity, and an abilit y to read and understand financial statem ents and docum

ents.” Berquist never presents evidence to refu t e th e fact th at the PIN accurately pinpoints his deficiencies in the credit review skills necessary to be a SFG credit process reviewer. Berqui st al so insinuates that Scott Frazee refused 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 for his self-identified skill sets. Martinez and Julie Aydelotte, 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,16

What we want to discuss wit h yo u today 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 cont ribution that you could provide Washington Mutual from a global basis, I definit ely think there is som e contri bution th ere. The issue really becomes are t hose 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 th e hist orical performance as far as your 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 wit h any int erested managers within the company. Berquist requested to receive his severance package of fered during the acquisition period, bu t A ydelotte 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 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 abilit y t o 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 that “[w]hat you need to do is 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 look 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 that 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.17

Based on this evidence, confirmed and undisputed by Berquist on the pertinent point s, the PIN highlight ed his self-acknowledged lac k of experience with credit review. Washington Mutual docum ented this skill deficiency , yet at the sam e 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 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 refused to cooperate wit h 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 th e pl aint iff; and, if t he defendant meets its burden of product io n, the plaintiff must then offer 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 alt ernative); or (2) th at the defendant's reason, while true, is only one of the
reasons fo r it s conduct, and another “mo tivating factor” is the plaint iff's protected characteristic (m ixed-motive[s] alternative).” Rachid , 376 F.3d at 311 (internal quotations omitted). Assuming arguendo th at Berquist established a prima facie case of age discrimination, the undisputed summary judgment evidence demonstrates that Washington Mutual undertook a majo r18

reorganization in th e Corporate Credit Review departm ent, which eliminat ed Be rqui st’s position. Berquist fails to raise a genuine issue of mat erial fact regardin g the evidence presented to support Washington Mutual’s legitimate, non-discriminatory reason for his termination. Martinez came to Washington Mutual on Septem ber 30, 2003, charged wit h the responsibility of regenerating an underperforming group–develop a strategy and implement the appropri ate 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 purpose 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 of fices and the creation of new positions. In th e 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, Houston 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 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 of Corporate Credit Review fo cusing

on com mercial portfolios in Houston, were notified th at their positions would be eliminated. After announcing th e decision to relocate th e CBG function, both men were of fered a severance package wit h th e option to be re-hired in another departm ent. This o ffer required them to sign a release19

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 severance package. Moreover, similarly sit uated employees willing to fo llo w procedures were re-hired wit hin other 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 age of fo rty , 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.