The Honorable Steven N. Limbaugh, United States District

1

Judge for the Eastern District of Missouri.

____________

No. 95-1255

____________

Michael Aucutt, *

*

Appellant, *

*

v. *

*

Six Flags Over Mid-America, *

Inc., a Missouri corporation *

in good standing, * Appeal from the United States

* District Court for the

Appellee. * Eastern District of Missouri

*

---------------- *

*

Equal Employment Advisory *

Council, *

*

Amicus Curiae. *

____________

 Submitted: November 16, 1995

 Filed: June 5, 1996

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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

____________

McMILLIAN, Circuit Judge.

Michael Aucutt appeals from a final judgment entered in the United

States District Court for the Eastern District of Missouri granting

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summary judgment in favor of Six Flags over Mid-America, Inc. (Six Flags).

Aucutt v. Six Flags Over Mid-America, Inc., 869 F. Supp. 736, 744 (E.D. Mo.

1994). For reversal, plaintiff argues the district court erred in holding

that (1) plaintiff had failed
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to establish a prima facie case on his Age Discrimination in Employment Act

(ADEA) claim or, in the alternative, had failed to rebut the legitimate,

nondiscriminatory reason for his termination proffered by defendant and (2)

plaintiff had failed to establish a prima facie case of disability

discrimination in violation of the Americans with Disabilities Act (ADA).

For the reasons discussed below, we affirm the judgment of the district

court.

I. Background

After a career in the United States Army, Aucutt was hired by Six

Flags in April 1990 as a seasonal security guard at its amusement park in

Eureka, Missouri. At the time he was hired, Aucutt was 41 years old. In

May 1990, Six Flags made Aucutt a full-time security guard. His duties in

this position included patrolling the amusement park and its parking lot.

Aucutt held this position until October 1992, when he was discharged, at

the age of 44. 

During his employment at Six Flags, Aucutt was diagnosed with high

blood pressure, angina, and coronary artery disease. He informed his

supervisors at Six Flags of these medical conditions. In July 1991, Aucutt

became ill while at work. He was transported to a hospital, treated for

high blood pressure and released after several days. He returned to work

approximately three weeks later with a doctor’s statement releasing him for

work and stating that he should not lift more than twenty-five pounds.

Aucutt alleges that when he returned to work, Tom Robertson, the vicepresident of Six Flags, initially told him that he would be discharged but

later informed him that he would not be discharged after all. Aucutt also

alleges that on the same day, Keith Hendricks, the Admissions Supervisor,

told him that the “insurance people did not want him back [at]. . . work.”

Joint App. 45-46. Six Flags denies these allegations. It is undisputed,

however, that Six Flags refused Aucutt’s repeated requests to be allowed

to drive air-conditioned
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vehicles on warm days. Six Flags was also aware that Aucutt could not

perform a “streams course,” a mandatory employee obstacle course, without

experiencing severe pain.

At the end of the 1992 season, William Haviluk, the General Manager

of the Six Flags in Eureka reviewed the park’s operating results and

decided to engage in a reduction-in-force (RIF) at the park. Haviluk

implemented layoffs which affected several of the park’s departments. He

directed Mike Chilovich, the Manager of Security, to reorganize the

Security Department. It was decided that three security positions (two

sergeants and one officer) would be eliminated as part of the RIF. In

October 1992, after evaluating the officers and sergeants under his

supervision, Chilovich concluded that Aucutt would be terminated.

Chilovich Aff. ¶ 12. According to Chilovich, Aucutt was selected because

of his low productivity and abrasive, “militaristic” attitude towards park

patrons. For example, on one occasion Aucutt had made patrons perform

push-ups in the parking lot; he had also conducted several unauthorized

searches of patrons’ vehicles for liquor. Chilovich Aff. ¶ 7-8. Although

Chilovich had not personally observed these incidents, he did counsel

Aucutt about his negative attitude at work. In February 1992, Chilovich

specifically informed Aucutt that a failure to improve his work attitude

would result in termination. Chilovich Aff. ¶ 11. However, according to

Six Flags, Aucutt continued to demonstrate an abrasive demeanor while on

duty.

When Chilovich recommended Aucutt for layoff in October 1992 as part

of the RIF, Haviluk concurred. At the time of his layoff, Aucutt was 44

years old and the oldest uniformed security officer at the park. Eight

months later, following the termination of another uniformed security

officer, a long-term Six Flags employee below the age of 40 was transferred

into the Security Department as a uniformed security officer.
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After exhausting his administrative remedies, Aucutt instituted the

present action on September 24, 1993, in the United States District Court

for the Eastern District of Missouri, alleging his layoff was

discriminatorily based upon his age and his medical conditions, in

violation of the ADEA and ADA, respectively. On December 6, 1994, upon

motion by Six Flags, the district court entered summary judgment in favor

of Six Flags, holding that Aucutt had failed to establish a prima facie

case of discrimination under either the ADEA or the ADA. Further, the

district court found that even if Aucutt had established a prima facie case

of age discrimination, he had failed to rebut the legitimate,

nondiscriminatory reasons for his layoff articulated by Six Flags. Slip

op. at 12-13, 19. This timely appeal followed.

II. Discussion

A. Standard of Review

We review a grant of summary judgment de novo. The question before

the district court, and this court on appeal, is whether the record, when

viewed in the light most favorable to the non-moving party, shows that

there is no genuine issue as to any material fact and that the moving party

is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c);

see, e.g., Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Get Away Club, Inc.

v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire & Marine

Insurance Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992). Where the

unresolved issues are primarily legal rather than factual, summary judgment

is particularly appropriate. Crain v. Board of Police Comm’rs, 920 F.2d

1402, 1405-06 (8th Cir. 1990).
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B. ADEA Claim

On appeal, Aucutt contends that the district court erred in granting

summary judgment in favor of Six Flags on his ADEA claim for three

reasons. First, he argues the district court failed to apply the proper

standard for determining whether a motion for summary judgment should be

granted. According to Aucutt, the district court neither viewed the facts

in the light most favorable to him as the non-movant, nor resolved

evidentiary conflicts in his favor. Second, Aucutt argues the district

court erroneously concluded that he had failed to establish a prima facie

case of age discrimination in violation of the ADEA or, alternatively, that

he had failed to rebut the legitimate, nondiscriminatory reason for his

layoff articulated by Six Flags. Finally, Aucutt maintains that

statements in Chilovich’s affidavit describing Six Flags’

nondiscriminatory reason for its selection of Aucutt for discharge

were improperly credited by the district court, because these

statements were not based on Chilovich’s personal knowledge, as

required by Fed. R. Civ. P. 56(e). We consider each argument in

turn.

1. Standard of Review Employed by District Court

Aucutt first argues that the district court, in considering

Six Flags’ motion for summary judgment, failed to review the facts

in a light most favorable to him, the party opposing the motion,

and give him the benefit of all reasonable inferences supported by

the facts. See Didier v. J.C. Penney Co., 868 F.2d 276, 279-80

(8th Cir. 1989). More particularly, Aucutt contends that the

district court, in considering his performance evaluations, gave

undue weight to the portions describing his “negative,

militaristic” attitude but failed to give sufficient weight to the

portions stating that he had “made progress as a security officer.”

Appellant’s Add. 11; Joint App. 65. He also maintains that the

district court improperly disregarded the statements allegedly made
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by Robertson and Hendricks in July 1991 as evidence of age-based

discriminatory animus. 

Plaintiff’s arguments are without merit. Although the

district court was required to consider all facts in the light most

favorable to Aucutt, it was not required to ignore undisputed

evidence in the record indicating that Aucutt had repeatedly

demonstrated a hostile attitude towards park patrons. 

Similarly, the district court properly disregarded the

statements allegedly made by Robertson and Hendricks, in light of

the principles set forth in Beshears v. Asbill, 930 F.2d 1348, 1354

(8th Cir. 1991) (Beshears). In Beshears, we distinguished between

“[c]omments which demonstrate a ‘discriminatory animus in the

decisional process’” from “‘stray remarks in the workplace,’

‘statements by nondecisionmakers,’ or ‘statements by decisionmakers

unrelated to the decisional process.’” Id. (quoting Price

Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J.,

concurring)); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449

(8th Cir. 1993) (Radabaugh) (documents authored by company

president emphasizing young age of managers as one of company’s

strengths constituted evidence of age-based discriminatory animus).

In the present case, the alleged remarks of Robertson and Hendricks

were made fourteen months before Aucutt’s termination, and neither

Robertson nor Hendricks was involved in the decision to terminate

Aucutt in October 1992. Moreover, these statements do not evince

any discriminatory animus with respect to age. Thus, even if made,

these statements constitute “stray remarks in the workplace [or]

statements by nondecisionmakers” and were therefore properly

disregarded by the district court. Beshears, 930 F.2d at 1354. We

therefore hold that the district court properly applied the summary

judgment standard in the present case.
 The ADEA provides, inter alia, that “[i]t shall be unlawful 2

for an employer . . . to fail or refuse to hire or to discharge any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age. . . .”

29 U.S.C. § 623(1).

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2. Merits of ADEA Claim

Aucutt next contends that the district court erred in

determining that he had failed to present a prima facie case of age

discrimination in violation of the ADEA or, alternatively, that he 2

had failed to show that the legitimate reason for his discharge

articulated by Six Flags was a pretext for age discrimination. See

slip op. at 12-13. We disagree.

The burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973), for Title VII

discrimination cases also governs age discrimination claims under

the ADEA. Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th

Cir. 1984) (Holley). The plaintiff must first establish a prima

facie case of age discrimination. In order to establish a prima

facie case, an age-discrimination plaintiff such as Aucutt, who was

dismissed pursuant to a RIF, must show that: (1) he or she was at

least 40 years old at the time of discharge; (2) he or she

satisfied the applicable job qualifications; (3) he or she was

discharged; and (4) “provide some additional showing that age was

a factor in the termination.” Nitschke v. McDonnell Douglas Corp.,

68 F.3d 249, 251 (8th Cir. 1995) (Nitschke) (quoting Holley, 771

F.2d at 1165). If the plaintiff establishes a prima facie case,

the employer has the burden of producing evidence that the

plaintiff was discharged “for a legitimate, nondiscriminatory

reason.” St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742, 2747

(1993) (quoting Texas Dep’t of Community Affairs v. Burdine, 450
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U.S. 248, 254 (1981)). The burden then shifts to the plaintiff to

prove that the reason articulated by the employer was a pretext for
 This argument is considered separately below. 3

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age-based discrimination. Nitschke, 68 F.3d at 251; Hutson v.

McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995).

We will assume for purposes of this appeal that Aucutt has

established a prima facie case of age discrimination. Even

granting him this assumption, the district court properly entered

summary judgment in favor of Six Flags on the issue of pretext.

Six Flags submits that it discharged Aucutt pursuant to a RIF

caused by a decline in business in the 1992 season. According to

Chilovich, the Manager of Security at the Six Flags in Eureka,

Aucutt was selected for termination because of his failure to

correct his negative work attitude after repeated admonitions,

including a corrective counseling session in February 1992.

Chilovich Aff. ¶ 12. Noting that Aucutt had conducted unauthorized

searches of patrons’ cars in the parking lot, had made park guests

perform “push-ups” on at least one occasion, and had often

criticized Six Flags’ procedures, Chilovich stated that he had

recommended Aucutt for termination, and the General Manager had

agreed, because Aucutt’s behavior was inconsistent with the

company’s public relations and safety policies. Chilovich Aff.

¶¶ 7, 12. 

Because Six Flags presented a legitimate, nondiscriminatory

reason for Aucutt’s termination, the burden shifted to Aucutt to

demonstrate the existence of a factual issue as to whether this

explanation was a pretext for age-based discrimination. Although

Aucutt questions Chilovich’s personal knowledge of the “push up”

incident, he does not deny having engaged in any of the

3

“militaristic” conduct described by Chilovich. Rather, he merely

alleges pretext on the basis that Six Flags retained two younger

security officers who had inferior job performance evaluations. Yet
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we note that these officers were only ranked below Aucutt in one

category; nor did they demonstrate the negative work attitude for
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which Aucutt had often been admonished. More importantly, however,

Aucutt has not presented any evidence that Six Flags harbored agebased discriminatory animus. This court may not second-guess an

employer’s personnel decisions, unless such decisions are based

upon unlawful discrimination. See Walker v. AT & T Technologies,

995 F.2d 846, 850 (8th Cir. 1993). Upon careful de novo review, we

hold that the district court correctly determined that Aucutt has

not presented sufficient evidence to create a genuine issue of

material fact that Six Flags’ articulated reason for his discharge

was a pretext for age-based discrimination.

3. The Chilovich Affidavit

Aucutt contends that the district court erred in crediting the

reasons for his termination given by Chilovich in his affidavit.

Noting that Fed. R. Civ. P. 56(e) requires that affidavits

supporting motions for summary judgment be made on personal

knowledge, Aucutt argues that Chilovich’s affidavit does not meet

this requirement because Chilovich lacked personal knowledge of the

“push-up” incident described in his affidavit. Chilovich made the

following statement in paragraph eight of his affidavit:

It came to my attention that while

patrolling the parking lot, Michael

Aucutt encountered four young guests in

military uniforms. It also came to my

attention that after concluding that

they had violated a rule, he informed

them that he was a former Army Sergeant,

he had the authority to discipline them

as their military superior, and then

commenced giving orders to perform

calisthenic “push-ups”, (which the

guests then did), in the Six Flags

parking lot.
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Chilovich Aff. ¶ 8. Chilovich recounted the “push-up” incident as

one of several examples of Aucutt’s failure to improve his hostile

demeanor towards park patrons, which was the primary reason why he

was selected for layoff in the October 1992 RIF. Aucutt contends
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that because Chilovich did not personally observe the “push-up”

incident described in the affidavit, the district court improperly

considered the affidavit in deciding to grant summary judgment in

favor of Six Flags. 

Six Flags responds that Chilovich’s affidavit comports with

Fed. R. Civ. P. 56(e), because it was based on Chilovich’s personal

knowledge of the reasons for the decision to lay off Aucutt. We

agree. Fed. R. Civ. P. 56(e) requires that affidavits supporting

or opposing a motion for summary judgment “shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.”

Fed. R. Civ. P. 56(e). In evaluating evidence related to possible

summary judgment, a court may not consider affidavits that do not

satisfy the requirements of Fed. R. Civ. P. 56(e). See El Deeb v.

University of Minnesota, 60 F.3d 423, 428-29 (8th Cir. 1995);

Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir. 1980). The

district court in the present case properly considered Chilovich’s

affidavit, because it was based on Chilovich’s personal knowledge

of the reasons underlying the challenged employment decision. As

the Manager of the Security Department, Chilovich was directed to

select two sergeants and one officer to be laid off as part of the

October 1992 RIF. He evaluated the personnel file and performance

of each employee under his supervision and decided to lay off

Aucutt. In his affidavit, Chilovich indicated that he had

repeatedly admonished Aucutt to improve his demeanor towards park

guests while performing his security duties, yet Aucutt had failed

to do so. For example, Chilovich stated, “Even after I reminded

Aucutt several times not to conduct vehicle searches, I still found

him in the parking lot searching vehicles.” Chilovich Aff. ¶ 7.

He further stated that he chose Aucutt for termination because

Aucutt had “continued to demonstrate a negative attitude and an
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unwillingness to cooperate with Six Flags’ policies and

goals. . . .” Chilovich Aff. ¶ 12. Thus, Chilovich had firsthand
 The ADA prohibits discrimination “against a qualified

4

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a).

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knowledge of the reasons why Aucutt was selected for discharge.

Fed. R. Civ. P. 56(e) does not require Chilovich to have witnessed

every incident supporting the termination decision, so long as he

had personal knowledge that the decision was for reasons unrelated

to age-based discrimination. Cf. Gill v. Reorganized School Dist.,

32 F.3d 376, 379 (8th Cir. 1994) (school superintendent who

discharged plaintiff teacher after receiving report that student

had accused plaintiff of making racially derogatory remarks

satisfactorily rebutted plaintiff’s prima facie case with a

legitimate reason for plaintiff’s discharge; superintendent need

not have observed incident in question, because crucial issue was

“whether [the reported incident] was the real reason for [Gill’s]

termination and not a pretext for [race] discrimination”). 

In light of the foregoing, we hold that the district court did

not err in considering Chilovich’s affidavit in support of Six

Flags’s motion for summary judgment. We further hold that the

district court properly entered summary judgment in favor of Six

Flags on Aucutt’s ADEA claim.

C. ADA Claim

Finally, Aucutt challenges the district court’s granting

summary judgment in favor of Six Flags on his ADA claim. The

4

district court concluded that Aucutt had not established a prima

facie case of disability discrimination, because he had failed to

show that he suffered from a “disability” within the meaning of the
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ADA. Slip op. at 19. A plaintiff may use the McDonnell Douglas

Corp. v. Green burden-shifting framework described above to prove
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a claim of intentional disability discrimination. See Price v. S-B

Power Tool, 75 F.3d 362, 364-65 (8th Cir. 1996), petition for cert.

filed, 64 U.S.L.W. 3765 (U.S. Apr. 29, 1996) (No. 95-1782). To

establish a prima facie case under the ADA, a plaintiff must show

that: (1) he or she is a “disabled” person within the meaning of

the ADA; (2) he or she is qualified to perform the essential

functions of the job (either with or without reasonable

accommodation); and (3) he or she has suffered an adverse

employment action under circumstances from which an inference of

unlawful discrimination arises. See id. (citing Benson v.

Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)). In

order to establish a prima facie case in a RIF situation, the

plaintiff must also show that his or her disability was a

determining factor in his or her termination. See Johnson v.

Minnesota Historical Soc’y, 931 F.2d 1239, 1243 (8th Cir. 1991). 

The ADA defines a “disability” as “(A) a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual; (B) a record of such impairment; or

being regarded as having such an impairment.” 42 U.S.C.

§ 12102(2)(A)-(C). It is undisputed that Aucutt suffers from

angina, high blood pressure, and coronary artery disease. The

district court held that Aucutt was not “disabled” within the

meaning of the ADA, because he had presented no evidence suggesting

that his medical problems “substantially limit[ed]” one or more of

his “major life activities.” Slip op. at 19. Emphasizing that he

could not complete the “streams course” without experiencing severe

pain, Aucutt argues that his medical problems constitute

“disabilit[ies]” as defined in 42 U.S.C. § 12102(2)(A).

Alternatively, he contends that because Six Flags was aware of his

medical problems, his difficulty performing the streams course, and

his requests for an air-conditioned vehicle, he was “regarded” as
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having an impairment which substantially limited one or more of his

major life activities. 42 U.S.C. § 12102(2)(C). We think Aucutt’s

arguments are without merit.
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Because the ADA does not define the term “major life

activities,” we are guided by the definition provided in 29 C.F.R.

§ 1630.2, the Equal Employment Opportunity Commission (EEOC)

regulations issued to implement Title I of the ADA. See 42 U.S.C.

§ 12116 (requiring EEOC to issue regulations implementing ADA). As

defined in 29 C.F.R. § 1630.2(i), the phrase “major life

activities” means “functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing

learning, and working.” 29 C.F.R. § 1630.2(i). The regulations

further provide that “[t]he inability to perform a single,

particular job does not constitute a substantial limitation in the

major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i).

Rather, a person claiming a disability must show that the

impairment “significantly restrict[s] [his or her] ability to

perform either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable

training, skills and abilities.” Id; see also Bolton v. Scrivner,

Inc., 36 F.3d 939, 942-44 (10th Cir. 1994) (Bolton) (work-related

injury preventing employee from performing his job as order

selector in grocery warehouse was not substantial limitation in

major life activity of working, as required for unlawful discharge

claim under ADA, absent evidence showing restriction in ability to

perform class of jobs or broad range of jobs in various classes),

cert. denied, 115 S. Ct. 1104 (1995). Finally, the EEOC

regulations state that the following factors should be considered

in determining whether an individual is substantially limited in a

major life activity: (i) the nature and severity of the impairment,

(ii) its duration or expected duration, and (iii) its actual or

expected long-term impact. 29 C.F.R. § 1630.2(j)(2).

Aucutt has not presented any evidence indicating that his

angina, high blood pressure, and coronary artery disease place a

significant restriction on his ability to perform any of the basic
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functions enumerated in 29 C.F.R. § 1630.2(i). His difficulty

completing the “streams course” hardly constitutes the requisite
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showing that his medical condition substantially limited his

overall employment opportunities. See Bolton, 36 F.3d at 943. We

note, for example, that a 25-pound lifting restriction was the only

medical limitation placed upon Aucutt’s activities after his

hospitalization in July 1991. Nor has Aucutt attempted to show

that his angina, high blood pressure, and coronary artery disease

pose a significant restriction on his ability to carry out other

major life activities, such as walking, seeing, speaking,

breathing, or learning. See 29 C.F.R. § 1630.2(i). In short,

Aucutt has failed to present sufficient evidence to establish that

the nature, duration, and long-term impact of his medical problems

caused him to be substantially limited in a major life activity.

Therefore, we hold that he is not “disabled” within the meaning of

42 U.S.C. § 12102(2)(A).

Also without merit is Aucutt’s claim that he is disabled under

42 U.S.C. § 12102(2)(C) because Six Flags regarded him as having an

impairment which substantially limited one or more of his major

life activities. In support of this argument, Aucutt notes that

Six Flags was aware of his medical problems, his inability to

perform the “streams course,” and his requests for an airconditioned vehicle during the summer months. The mere fact that

Six Flags had such knowledge, however, does not show that Six Flags

regarded Aucutt as having a disabling impairment. We are again

guided by the applicable EEOC regulations, which provide as

follows:

(l) Is regarded as having such an

impairment means:

(1) Has a physical or mental

impairment that does not substantially

limit major life activities but is

treated by a covered entity as

constituting such limitation;
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(2) Has a physical or mental

impairment that substantially limits

major life
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activities only as a result of the

attitudes of others toward such

impairment; or

(3) Has none of the impairments

defined . . . [above] but is treated by

a covered entity as having a

substantially limiting impairment.

29 C.F.R. § 1630.2(l)(1)-(3). Aucutt has not brought forth any

evidence suggesting that Six Flags perceived or treated him as

having a substantially limiting impairment. In the absence of such

evidence, the fact that Six Flags was aware of his medical problems

is insufficient to establish that Six Flags “regarded” him as

disabled under 42 U.S.C. § 12102(2). Thus, we hold that Aucutt

failed to make a prima facie case of disability discrimination.

III. Conclusion

After carefully reviewing the record, we hold that the

district court did not err in granting summary judgment in favor of

Six Flags on Aucutt’s ADEA and ADA claims. Accordingly, the

judgment of the district court is affirmed.

A true copy.

Attest:

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