## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 05-4038

___________ Bonnie Wittenburg, * * Appellant, * * v. * * Appeal from the United States American Express Financial * District Court for the Advisors, Inc., * District of Minnesota. * Appellee, * ____________________ * * American Association of * Retired Persons, * * Amicus on Behalf of * Appellant. *

___________ Submitted: May 19, 2006 Filed: September 28, 2006

___________ Before BYE, HANSEN, and SMITH, Circuit Judges.

___________ SMITH, Circuit Judge.

Bonnie Wittenburg, a former Equity Research Analyst for American Express Financial Advisors, Inc.'s ("AEFA") Equity Investment Department ("EID"), brought this employment discrimination suit agai nst AEFA, asserting gender discrimination1 The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.

2 In late 1999, when Mahowald was still ananalyst, he had a conversation with Kay Doremus, a fellow analyst, about the chief of the investment department's comment that one analyst would be elimin ated per year. Doremus expressed her fear

-2- and age discrimination in AEFA's termination of her employment. AEFA filed a motion for summary judgment, which the district court 1 granted. Wittenburg appeals, arguing that she presented sufficient evidence to support her age and gender discrimination claims. We affirm.

I. Background AEFA provides financial planning, advi ce, asset management, insurance, and annuities to clients, primarily through a ne twork of financial a dvisors; in addition, AEFA manages mutual funds. In November 1998, AEFA hired Wittenburg, then age 46, to work in its Minneapolis office as an Equity Research Analyst in the Technology Sector of the EID. When AE FA hired Wittenburg, she was one of two female analysts in an approximately 26-person department. According to Raymond Hirsch, former Group Director of the T echnology Sector, Wittenburg worked hard, displayed "excellent investment skills," a nd provided "first class service" to the portfolio managers. In fact, Wittenburg wa s named "Analyst of the Year" in 2000 because of her "outstanding efforts and achievements."

In Fall 2001, AEFA hired Ted Truscott as its Chief Investment Officer ("CIO") to manage all investment activity at AEFA. As CIO, Truscott directly supervises the senior portfolio managers in the EID who, in turn, supervise the associate portfolio managers and analysts. Analysts do not report directly to Truscott. Truscott subsequently promoted analyst Tom Mahowal d to the position of Director of Equity Research, thereby making Mahowald Wittenburg's direct supervisor. Thus, Wittenburg reported to Mahowald, and Mahowald reported to Truscott. 2to Mahowald that she would be fired because she r eceived a written performance warning. Mahowald agreed that AEFA tended to terminate one person per year, but he commented that "you have to make con cessions because a lot of these guys are the sole support for their families." At the time, Doremus was the major breadwinner for her family.

3 A document entitled "Equity Investme nts Group Strategy: Reorganization Impacts," shows a total anal yst reduction of seven analysts in the June 2002 RIF.

-3- In February 2002, Truscott initiated a two- year project to redesign the EID. The redesign project involved the addition of three portfolio managers hired from a competitor, the creation of a new satellite office in Boston, and the merger or movement of certain funds to AEFA's sate llite offices in San Diego, Boston, and New Jersey. In discussing AEFA's hiring of the three new portfolio managers, Truscott stated that AEFA planned on hiring mo re managers in Boston because AEFA "need[ed] to be competitive as the best fund families out there. We will hire talent where we feel we have gaps. That said, we are not averse to hiring younger portfolio managers or analysts and growing them."

As part of the February 2002 redesi gn plan, AEFA included a reduction-inforce ("RIF"), which, accordi ng to Truscott, was necessary and "related to the transfer of investment portfolios to the newly fo rmed Boston office." The February 2002 RIF involved only portfolio managers. One of th e portfolio managers terminated in the RIF was Al Henderson, age 62. According to Henderson, Dan Rivera, Head of the Equities Department and a decisionmaker in the February 2002 RIF, told him that he was fired because AEFA wanted to retain"those that were younger" because younger employees have "more years of service ahead of them."

The second RIF occurred in June 2002 and was, according to Truscott, "related to the transfer of portfolios to the then being established San Diego office." This RIF primarily impacted portfolio manage rs; however, three analyst positions in Minneapolis were also eliminated. 3 As part of the redesign process, a team comprisedThree analysts would be displaced, two analysts w ould be transferred, and two analysts would make "assumed moves" to the portfolio team.

4 At the end of each year, AEFA re views employees' performances. Each employee receives two ratings at the end of the year: one for goal achievement, the "G" rating, and one for demonstration of leadership competencies, the "L" rating, with 1 being the highest rating and 5 being the lowest rating. The year-end performance evaluation begins in September with the entry of performance data for each analyst into AEFA's human resources sy stem. This data includes analysts' selfappraisals, which were submitted to Mahow ald for his review and comments, and a preliminary performance rating determinedby Mahowald based on the comments of portfolio managers, his own comments, and the information available to him at the time with respect to analysts' recomme ndations verses the "S&P 500" and the investment "universe."

-4- of Human Resources Relationship Leader Judith Forker, Mahowald, Portfolio Managers Dan Rivera, Warren Spitz, Gor don Fines, and Human Resources personnel Patty Bales and Craig Dewald, created a tale nt review of the approximately 25 people in the department. This review included performance ratings for each analyst for the years 1999, 2000, and 2001, unless the analyst had not been employed during some or all of those years. In addition, the review evaluated the analyst's independent researching skills, communication skills, and whether the analyst was a team player. The review also indi cated whether the analyst was a "keep," "maybe keep," "maybe," "maybe drop," or "drop." These ratings we re generated to educate the leaders about the individuals working in the depart ment and to identify employees in the department that might be affected by the reorganization.

In late 2002, the EID held its ratings alignment meeting attended by Truscott, Mahowald, Forker, Director of Compensation Sherry Johnson, and Portfolio Managers Spitz, Fines, Rivera, John Sc honberg, and Jim Johns on. The group first discussed Mahowald's proposed ratings for each of the analysts, including Wittenburg. The pr oposed ratings were subject to change based on the group's discussion. 4Mahowald's proposed ra ting for Wittenburg was G3/L3, but after the5 Wittenburg was not assigned a special "private placements" project that Mahowald assigned to Ramos and Lauber. Ramos and Lauber received L1 scores, in part, because of this special project. Ma howald testified in his deposition that AEFA "had significant private pl acement activities and we had a portfolio that had lots of private placements in it and those stocks tha t went into that portfolio needed to be covered by the analysts. And so if that private placement was done in that analyst's area of expertise, they logically had extra work to do to research and recommend and otherwise monitor that investment."

6 When counsel for AEFA asserted that AE FA did not use the Starmine data for evaluating performance, Wittenburg agreed, st ating, "That is correct. But AEFA did feed Starmine data. They had our data."

-5- ratings alignment meeting, her 2002 rating was lowered to a G4/L3. The other Technology Sector analysts' ratings in 2002 were: G3/L3 for David Friedrichsen (age 40), G3/L1 for Kurt Lauber (age 35), and G3/L1 for Dean Ramos (age 39).

Wittenburg's low rating in 2002 was main ly because of her poor performance on funds and negative input she recei ved from portfolio managers. Although Wittenburg was the only analyst to complete a special project that Mahowald assigned, which consisted of picking up unrat ed stocks in the fourth quarter of 2002, her ratings on those stocks did not help the portfolio managers make money and consequently was not a positive consideration in her rating. 5

Wittenburg complained about her 2002 rating to Mahowald. At that time, she asserted that her G4 rating was too low based on "Starmine" data for 2002. Starmine rated Wittenburg's 2002 performance highly, awarding her four stars out of a maximum of five stars. Wittenburg, how ever, acknowledged that Mahowald did not have access to the Starmine information on her 2002 performance when he gave her the G4 rating. Mahowald agreed with Wittenburg about what the "Starmine" data showed, but he disagreed that the data should have impacted her performance rating, considering AEFA does not use the Starmine data for evaluating performance. 67 AEFA applied the multiple incumbent process to analysts by sector—financial, consumer, industrial, health care, and technology—as opposed to grouping all of the analysts into one big "pool" as AEFA did in the 2002 RIF.

-6- According to Mahowald, "Starmine was a syst em that [he] was looking at to evaluate analysts' performance. [He] started that in 2003. In doing so, [AEFA] fed Starmine historical data [for] 2002." AEFA uses Starmine as an "analyst tool."

In September 2003, Truscott informed Mahowald that a third RIF would occur. In October 2003, Mahowald, Forker, Chief Administrative Officer Pete Gallus, Director of Compensation Sherry J ohnson, Schonberg, Spitz, and Bales met to determine how many analysts AEFA would need to cover each of the sectors of mutual fund products located in Minneapolis. They determined that AEFA only needed to retain one Technology Sector analyst based on business need; therefore, three of the four Technology Sect or analyst positions would be eliminated. To implement the RIF, AEFA used the multiple incumbent process. 7 Consistent with that process, the performance ratings of analys ts for 2002 and, in the event of a tie, 2001, were used in determining which analysts w ithin each sector to terminate. Like all other analysts, Wittenburg's 2002 ratings were used.

With regard to the Technology Sector, AEFA terminated Wittenburg, age 51, in the third RIF, along with Friedrichsen , age 41, and Lauber, age 36. Only Ramos, age 40, was retained. All of the sectors combined had a total of 17 analysts, 11 of which were 40 years or older and 2 of wh ich were women. Ultimately, of the 7 analysts selected for job elimination, 4 we re 40 years or older and 1, Wittenburg, was a woman. AEFA retained 51-year-oldSandy Hollenhorst, who was hired by Mahowald in 2001.

AEFA notified Wittenburg of her positi on elimination on November 18, 2003, in a meeting with Truscott and Forker. Wittenburg asked why AEFA selected her-7- position for elimination. Truscott and Forker explained that the decision was based on AEFA's desire to keep only one Techno logy Sector analyst; therefore, based on her low 2002 rating, she was identified as oneof the three analysts for termination. When Wittenburg told Truscott that she disputed her G4/L3 rating, Truscott, according to Wittenburg, "start[ed] going on a bout in '02 people did not rate the six rated stocks." Wittenburg, however, did not respond to Truscott. She was upset that she "was not given credit" for "getting the six rated stocks" because she was the only person in her department who had. Witte nburg's employment with AEFA ended on January 9, 2004. According to Wittenbur g, within hours of her termination, Mahowald spoke with her and said, "Y our husband has a job, doesn't he?"

After her termination, Wittenburg soughta position as a portfolio manager at AEFA but was not hired. She subsequen tly brought suit agains t AEFA, asserting claims of age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, gender discrimination under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, and gender and age discrimination under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.41. Wittenburg now appeals the district court' s grant of summary judgment to AEFA on her gender discrimination and age discrimination claims.

II. Discussion Wittenburg argues that the district court erroneously granted summary judgment to AEFA on her age and gender discrimination claims because material issues of fact remain unresolved.

We review the district court's grant of summary judgment de novo. Wallace v. Sparks Health Sys. , 415 F.3d 853, 858 (8th Cir. 2005). Therefore,"our task in this appeal is to decide whether the record re veals issues of material fact that would prevent the entry of summary judgment in favor of [AEFA]." Id . at 860. In completing this task, we are mindful that we "do not sit as a super-personnel8 To establish a prima facie case of age discrimination resulting from a RIF, the plaintiff must show that (1) she is at l east 40 years old; (2) she was qualified for the job; (3) she was discharged; and (4) age was a factor in the employer's decision to terminate her. Chambers v. Metro. Prop. & Cas. Ins. Co. , 351 F.3d 848, 855 (8th Cir. 2003). To establish a prima facie case of gender discrimination, the plaintiff must show that (1) she is a member of a protect ed class; (2) she was qualified for the job; (3) she was subjected to an adverse empl oyment decision; and (4) she was treated differently than similarly-situated males. Hesse v. Avis Rent A Car Sys. , 394 F.3d 624, 631 (8th Cir. 2005).

-8- department to review the wisdom or fairness of [AEFA's] job-elimination policies during the RIF." Id

.

We apply the familiar burden-shifting analysis of McDonnell Douglas Corp.
v. Green , 411 U.S. 792, 802 (1973). This analysis requires the plaintiff to establish a prima facie case of discrimination. Id . We, like the district court, assume without deciding that Wittenburg established a prima facie case of both age and gender discrimination. 8

In addition, both parties agree thatAEFA proffered a legitimate, nondiscriminatory reason under the McDonnell Douglas test for Wittenburg's termination in the November 2003 RIF: that AEFA conducted a RIF in 2003 based on financial and business reasons and terminated Witte nburg during the RIF on the basis of her low 2002 performance rating. Accordingly, our task is to determine whether a genuine issue of material fact remains whether AEFA's non-discriminatory reason was pretextual. Id . at 804.

A. Age Discrimination Wittenburg argues that she presented sufficient evidence from which a reasonable fact-finder could conclude that ag e played a role in her termination and that AEFA's proffered reasons fo r her termination are pretextual.-9- First, Wittenburg relies on the following statements of AEFA personnel to support her age discrimination claim: (1) Truscott's statement that AEFA is "not averse to hiring younger portfolio managers or analysts and growing them;" (2) Forker's 2002 notes indicating that the anal yst department would "maybe add a junior person;" and (3) Rivera's comment during the February 2002 RIF that AEFA wanted to retain "those that were younger" because they have "more years of service ahead of them."

A plaintiff must establish " some causal relationship" to show "the significance of [decisionmakers'] non-contem poraneous statements, or statements made by persons other than the relevant decision-maker, to the resolution of the ultimate issue of intentional discrimination." Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 779 (8th Cir. 1995) (emphasis in original). Ther efore, we consider factors such as (1) whether the statements were made by em ployees who took part in the decision or influenced the decision to terminate the pl aintiff; (2) the time gap between when the statements were made and the date of te rmination; and (3) "whether the statement itself" is "an exhibition of discriminatoryanimus" or merely an "opinion that such animus might exist." Id .; see also Frieze v. Boatmen's Bank of Belton , 950 F.2d 538, 542 (8th Cir. 1991) (holding that comments from the president of the company did not "create a reasonable inference of discri mination" because the president's comment to the employee that he had "waited too long . . . to start [his] effort towards becoming president of a bank and [the employee] would never make it" was made four years before the employee was discharged and before the president was actually the president).

Truscott, a decision-maker, made a gene ral statement regarding the company's willingne ss to hire younger workers. Such a generalized statement does not evince a discriminatory policy or practice, nor does it tend to establish that age was the basis for Wittenburg's termination over a year late r. The facts as alleged by Wittenburg do not establish any causal connection between Truscott's statement and her termination.9 Only six of the eight analysts were ac tually terminated; two of the analysts resigned.

-10- Likewise, Forker's reference to "junior person" in her notes does not show discriminatory intent. Witte nburg has failed to present evidence that Forker equated "junior person" to a "younger person" orhow such a notation relates to her termination in the 2003 RIF.

Additionally, Wittenburg admits that Rivera was only a decisionmaker in the initial phase of the departme nt downsizing, not in the 2003 RIF. Rivera's comment could be characterized as a non-contemporan eous, non-de cisionmaker's opinion about company retention policy during a prior RIF. Taken together, these comments byAEFA personnel fall short of establishing pretext in AEFA's stated nondiscriminatory purpose given for her termination.

Second, Wittenburg points out that AEFA "got rid" of the eight oldest analysts in the department by the end of the "two -year makeover plan" a nd gave four of the five oldest analysts low G4 or L4 ratings in 2002, thereby setting them up for termination in the 2003 RIF. 9 Wittenburg, howeve r, ignores evidence that several members of the protected class survived the RIFs. Out of 31 analysts affected by the 2002 and 2003 RIFs, 17 were 40 years old or older. Of those 17 analysts, 6 were terminated, 4 resigned, and 7 survived the RIFs. In comparison, of the 14 analysts in the non-protected class, 4 were terminated, 2 resigned, 2 were transferred to the hedge fund, and 6 survived the RIFs. Also, of the 20 analysts evaluated, Steve Schroll, age 46, and Paul Stocking, age 41, both member s of the protected class, ranked 1st and 2nd, respectively, in the 2002 analyst rankings. In addition, the two analysts terminated with Wittenburg from the Technology Sector were both younger than she—Friedrichsen, age 41, and Lauber, ag e 36. Furthermore, Hollenhorst, who was the same age as Wittenburg in 2003 (age 51), was not terminated during the 2003
RIF.10 Wittenburg labels these "younger" analysts as receiving lower scores than her scores. However, a close examination of the scores reveals their scores were comparable to or better than Witte nburg's scores. Three of the "younger" analysts—Tom Howell, Henry Kaczmarek, and Paul Stocking—all received higher "G" ratings than Wittenburg in 2001. The other two analysts—Laton Spahr and Mark Thompson—received the same "G" rating as Wittenburg in 2001. For 2000, Stocking received a higher "G" rating than Witte nburg, Howell and Kaczmarek received a lower "G" rating than Wittenburg, and Spahr and Thompson were not yet employed at AEFA. For 1999, Wittenburg did receive a higher score than Howell, Kaczmarek, and Stocking, but Spahr and Thompson were not yet employed at AEFA.

As for the other categories, Wittenburg ranked the same as Spahr, Thompson, and Howell, in the "independent research " category, while Kaczmarek and Stocking ranked higher than Wittenburg. In the "foc us on key investment metrics" category, Wittenburg again ranked the same as Spahr, Thompson, and Howell, while Kaczmarek and Stocking ranked higher than Wittenburg. In the "opinions, convictions" category, Spahr, Thompson, Kaczmarek, and Stocking ranked higher than Wittenburg, while Howell ranked the same as Wittenburg. In the "all comm." category, Wittenburg ranked higher than Ho well, Kaczmarek, and Stocking, and the same as Spahr and Thompson. In the "team player" category, Wittenburg ranked slightly higher than the five analysts. F inally, in the "visible" category, Wittenburg ranked higher than Thompson, Howell, Kaczmarek, and St ocking, while ranking the same as Spahr.

-11- Third, Wittenburg argues that Mahowald demonstrated age discrimination by rating Wittenburg a "maybe drop" during the June 2002 RIF, while ranking younger employees with lower scor es in the "keep" category. 10Wittenburg, however, survived this first round of layoffs. In addition, of the three analysts selected for termination in the June 2002 RIF, only two of the three analysts were over 40 years of age. Furthermore, Wittenburg does not challe nge AEFA's contention that these performance ratings were not used in the 2003 RIF.

Fourth, Witte nburg challenges AEFA's explanation for the RIFs, noting that Truscott stated that the RIFs were for cost-cutting, while AEFA represented to the11 We also reject this challenge as it applies to Wittenburg's gender discrimination claim.

-12- district court that the RIFs were done to improve performance funds and notfor costcutting. Truscott consistently testified, however, that the reason for the RIF was to redesign the EID, moving analysts positi ons from the Minneapolis office to the satellite offices. In addition, Truscott testif ied specifically about the 2003 RIF, stating that it was to employ the portfolio manager model and to reduce costs in the EID. A company need not provide evidence of financ ial distress to make an RIF "legitimate." Evers v. Alliant Techsystems, Inc. , 241 F.3d 948, 956 (8th Cir. 2001). Truscott never represented that cost reduction was not a consideration for the 2003 RIF. Rather, AEFA's counsel apparently made such a statement during argument to the district court where she stated that "cost cutting" was not a reason for the RIFs. However, arguments of counsel are not evidence. See United States v. Mullins , 446 F.3d 750, 760 (8th Cir. 2006). 11

Fifth, Wittenburg asserts that AEFA's reliance on her 2002 "G4/L3" rating to justify her termination is pretextu al because (1) Mahowald conducted the performance evaluation knowing that there could be another RIF within the department in 2003 and that his performance ratings would determine which analysts would be eliminated; (2) Mahowald failed to present Wittenburg with a written review of her rating; (3) she received a high rating from Starmine based on the same performance data that AEFA used; (4) in accuracies appear in the 2002 performance evaluation; (5) other similarly situated employees outside of her protected class received more favorable ratings; and (6) AEFA used a single year's performance evaluation to justify her termination.12 Dewald's email to Mahowald stated that "while Ted [Truscott] may be thinking longer-term Option 2, I don't think this should deter you from driving Option 1. 2003/2004 is a long way off and if you can really make an impact with Central Research over time, Option 2 may become a mute [sic] point 18 months from now."

-13- Wittenburg relies on an email 12that Dewald sent to Mahowald in April 2002 to prove that Mahowald knew that another RIF could occur in 2003. However, the email does not establish that fact. Dewald said that "Option 2 may become a mute [sic] point 18 months from now," indicating a lack of certainty. Furthermore, after the June 2002 RIF, Mahowald sent an email to th e EID stating that "[t]here is no second shoe to drop."

Regarding Mahowald's failure to pres ent Wittenburg with a written review of her rating, no analyst —either within the protected class or outside the protected class—received written reviews in 2002. In addition, Mahowald met separately with each analyst to orally deliver his 2002 year-end performance reviews.

Wittenburg's high Starmine rating is al so insufficient to prove pretext. Wittenburg admits that Mahowald did not have access to her 2002 Starmine rating when he gave her the G3 rating, which wa s changed at the ratings alignment meeting to a G4. In addition, Wittenburg admits th at AEFA never used Starmine data for evaluating performance.

As to the inaccuracies in her 2002 pe rformance evaluation, Wittenburg points to an error by the hedge fund managers stating that she had recommended the purchase of a certain stock for several months when, in fact, she had the stock rated neutral for nearly the entire year. Wittenburg, however, does not allege that Mahowald knew of this "erroneous assump tion" when he analyzed the portfolio manager feedback, which indicated belo w average results for Wittenburg. Also, although Wittenburg argues that the "L" ra ting is subjective, "the presence of subjectivity in employee evaluations is itself not a grounds for challenging those-14- evaluations as discriminatory." Hutson , 63 F.3d at 780 (emphasis added). Instead, Wittenburg must present "affirmative eviden ce that [AEFA] manipulated the rating system" to discriminate against her on an impermissible basis. Id . Wittenburg attempts to meet this burden by arguing th at she received an L3 rating despite being the only analyst to complete Mahowald's special project for 2002. However, Mahowald explained that although Wittenburg was the only analyst to complete the special project, her ratings on the stocks di d not help portfolio managers make money and consequently was not a positive consider ation in her rating. Mahowald also stated that her L3 rating was a direct result of th e negative feedback portfolio managers gave Wittenburg.

Wittenburg next argues that Mahowald in tentionally rated her lower in 2002 as a pretext for age discrimination. W ittenburg contends that similarly situated employees outside of her protected class were treated more favorably in terms of their L ratings. Specifically, she argues that Ma howald elevated the L ratings of Ramos, Lauber, and Steve Roorda by crediting them for completing a special "private placement" project that she was not assi gned. Mahowald, however, explained that these analysts only received the special pr oject because the private placements were "done in that analyst's area of expertise, [meaning that] they logically had extra work to do to research and recommend and otherwise monitor that investment." Furthermore, Wittenburg overlooks that, in 2002, Roorda, age 45, fell within the protected age group.

She also challenges her 2002 ratings based on AEFA's re liance only on the 2002 performance evaluations in deciding wh ich analysts to terminate in the 2003 RIF. We have noted, however, that "[t]here is nothing inherently discriminatory in an employer choosing to rely on recent performance data more hea vily than past performance in deciding which employees to te rminate in a RIF," as this is a business judgment properly left to the employer's discretion. Hutson , 63 F.3d at 780. Truscott explained that AEFA measures analysts ' performance in the "short run" because13 We also reject Wittenburg's assertion that AEFA's reliance on her 2002 "G4/L3" rating to justify her termination is pretextual as it relates to her gender discrimination claim.

-15- "many consumers look at one-year performan ce and make their decisions on this" and because "the track record at American E xpress had been so terrible that we needed to see how we were doing on a one-year basis." 13

Finally, Wittenburg argues that pretext is also shown by conflict in AEFA's statements and its hiring actions. According to Wittenburg, AEFA claimed it needed only one Technology Sector analyst but then immediately assigned significant Technology-Sector stock covera ge to Industrial Sector an alysts Roorda, age 45, and Larry Alberts, age 49, and advertised for analysts to fill two vacancies two months after the 2003 RIF. However, "[e]mployers often distribute a discharged employee's duties to other employees performing related work for legitimate reasons." Frieze
, 950 F.2d at 541. To prove that her termination was because of her age, a plaintiff needs to present evidence that her "discharge was part of a pattern of [the employer's] discharging employees over forty and distributing their work to younger employees." Id . Here, Wittenburg has presented no such evidence.

Furthermore, Roorda and Alberts are actually in the same protected class as Wittenburg. However, because "the ADEA prohibits discrimination on the basis of age and not class membership," we look to whether the replacement is "substantially younger" than the plaintiff. O'Connor v. Consol. Coin Caterers Corp. , 517 U.S. 308, 313 (1996). Therefore, we may not "rely on an arbitrary above 40/below 40 rule." Schiltz v. Burlington N. R.R. , 115 F.3d 1407, 1413 (8th Cir. 1997) (holding that plaintiff's age discrimination claim faile d where "[t]wo positions were filled by individuals older than or the same age as [the plaintiff]. Four positions were filled with individuals younger than [the plainti ff]. However, of these four positions, the largest age disparity between [the plainti ff] and the individual hired for the job was14 As to Wittenburg's gender discrimination claim, we also reject her argument that evidence of pretext can be found in AEFA's assigning Technology Sector stock coverage to two male Industrial Sector analysts and advertising for analysts to fill two vacancies shortly after the 2003 RIF. Re garding vacancies at AEFA after the 2003 RIF, AEFA actually hired Penny Kyle to fill the associate portfolio manager position.

15 Because the same analysis applies to MHRA claims as ADEA claims, Wittenburg's MHRA age discrimination claim also fails. Ace Elec. Contractors, Inc. v. Int'l Bhd. of Elec. Workers, Local Union No. 292 , 414 F.3d 896, 900 (8th Cir. 2005).

-16- five years."). We concludethat Roorda and Alberts are not "substantially younger" than Wittenburg, as the largest disparity between Wittenburg and R oorda is six years.

As to AEFA advertising to fill two vacan cies two months after the RIF, the two vacancies arose from among the ten surviving analyst positions. Therefore, AEFA did not create two new analyst positions afte r terminating Wittenburg. And, although Wittenburg argues that posting the new pos itions as "m ultiple sector" positions demonstrates pretext because AEFA had pr eviously rejected "pooling" analysts, Wittenburg has failed to show that the posti ngs were for a job substantially similar to her Technology Analyst position. 14Accordingly, we hold that Wittenburg has failed to prove pretext in her age discrimination claim. 15

B. Gender Discrimination Wittenburg next asserts that she presen ted sufficient evidence of gender-based animus and proved that AEFA's proffered r eason for her termination was a pretext for gender discrimination.

First, Wittenburg points out that, at the time of her hiring, she was only one of two female analysts in a department of 26 analysts. The number of female versus male analysts is relevant; however, it alone is in sufficient to show discriminatory animus.-17- Second, Witte nburg argues that she proved gender-based animus b ecause of Mahowald's comment to Doremus that "you have to make concessions because a lot of these guys are the sole support of their families." Just as in Frieze where the president's comment was made four years before the employee was discharged and before the president was actually president, Mahowald made this comment four years before the 2003 RIF and before he was hire d to run the EID. Therefore, Wittenburg has failed to show a causal relationshi p between Mahowald's 1999 comment and her termination in 2003.

Third, Wittenburg notes that Mahowald hired Blair Brumley, age 39, as an analyst weeks after the June 2002 RIF. Mahowald hired Brumley after two males were terminated in the 2002 RIF. Wittenbur g contends that Mahowald told her that he was hiring Brumley because he had been unemployed for ten months and that Mahowald "also talked about Blair's [B rumley] family." Wittenburg argues that Mahowald's statement expressed his pref erence for "male breadwinners." Assuming that Mahowald's statement could be thus construed, Wittenbur g's proof of gender discrimination in her termination is lacking.

Fourth, Wittenburg relies on a comment Mahowald made within hours of her termination in which he stated, "Your husband has a job, doesn't he?" In review of summary judgments we accord the nonmoving party all reasonable inferences. Inferring gender basis on this statement alone is not reasonable. In the absence of other proof, Mahowald's question does not show he terminated Wittenburg on the basis of her gender. Mahowald hired the second female analyst, Sandy Hollenhorst, in 2001 and AEFA retained Hollenhorst during the 2002 RIF.

Fifth, Wittenburg cites AEFA's reten tion of Ramos as the sole technology analyst who is, according to Wittenburg, a "historically lower performing male." Even if Wittenburg did "historically" perform better than Ramos, only the 2002 ratings were used in the 2003 RIF. Wittenbur g does not dispute that Ramos's 2002 ratings16 Because the same analysis applies to MHRA claims as Title VII claims, Wittenburg's MHRA gender discrimination claim also fails. Kasper v. Federated Mut. Ins. Co. , 425 F.3d 496, 502 (8th Cir. 2005).

-18- were better than her ratings. In addition, Ramos was retained over two male technology analysts—Friedrichsen and Lauber.

Finally, Wittenburg points to evidence that AEFA distributed tec hnology du ties to two male employees who had little or no technology stock experience after her termination. As we previously noted, it is permissible for an employer, after an RIF, to distribute a terminated employee's duties to retained employees. Therefore, we hold that Wittenburg's gender discri mination claim also fails. 16

III. Conclusion Accordingly, we affirm the judgment of the district court.

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