The H on. Donald D. Alsop, United States District Judge for the District o f 1 Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1194MN

_____________ Shirley Ziegler, * * Appellant, * * v. * * On Appeal from the United * States District Court for Beverly Enterprises-Minnesota, Inc., * the District of a California Corporation, doing * Minnesota. business as Woodrest Healthcare * Center, doing business as Woodrest * Nursing Home, * * Appellee. *

___________ Submitted: October 23, 1997 Filed: January 12, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
Shi rley Ziegler appeals from the District Court’s order granting summary 1 judgment in favor of defendant Beverly Enterprises-Minnesota, Inc., dismissing her-2-

claims that she was fired because of her age in violation of the Age Discrimination in Employm ent

Act (ADEA), 29 U.S.C. §§ 621-34 (1994), and the Minnesota Huma n Rights Act

(MHRA), Minn. Stat. § 363.03 (1997). A review of the record persuades us that the District Court did not err. We therefore affirm.

I.

In 1993, at age 61, Shirley Ziegler was terminated from her position a s admin istrator

of Woodrest Nursing Home by Beverly Enterprises-Minnesota, Inc., a company which owns and operates nursing homes. Ziegler had worked at Woodrest since before it opene d in 1967. In 1972, Ziegler became administrator, a position she held until her termination. From 1967 to 1982, Woodrest was privately owned b y Ziegler’s now-deceased husband. Contemporary Health Corp oration bought Woodrest in 1982. In 1983, Beverly bought Woodrest.
When Beverly purchased Woodrest, it appointed an Area Manager to supervise and evaluate the performance of a number of nursing home administrators. In Ziegler’s first performance review in 1984, she received a good overall evaluation, meeting or exceeding expectations in most of the reviewed areas. Zi egler was informed, however, that she s hould “display a greater sense of cooperation with consultants - needs t o display a greater awareness of subordinates [sic] worth as supervisors and as part of the team.” Appellant’s App., Ex. 5. The evaluation included a short list of futur e objectiv es for Ziegler, one of which included “develop[ing] supervisor’s leadershi p skills.” Id.
Ziegler’ s 1985 evaluation was similar to the one she received in 1984. Th e overall review was pos itive, but the Area Manager noted that “Shirley needs to spend gre ater efforts in developing staff through delegation and teaching. Holds operations too close to the chest. Teach, train and develop.” Appella nt’s App., Ex. 6. One of the-3-

three ob jectives given Ziegler for the coming year was improvement in employe e relations. Id. The record contains no evaluations for 1986 and 1987.

In 19 88, Beverly implemented a numerical “grading” system, with a “5 ”
re presenting “outstanding--substantively exceeds job requirements”; a “4,” “abov e expe ctations--exceeds most job requirements”; a “3,” “meets expectations-

- sat isfactorily meets job requirements”; a “2,” “minimum expectations--barely meet s minimum job requirements”; and “1,” “below expectations--fails to meet minimum job requirements.” On this new e valuation form, Ziegler received mostly threes and fours and an overall evaluation of above average. Appellant’s App., Ex. 7.
Wes Hodges became Ziegler’s supervi sor in 1989. Hodges’s first evaluation of Ziegler consisted mostly of threes and fours. In the areas of “[i]s accessible t o employees and helpful in resolving their problems,” “[d]elegates work to employee s consistent with their ability to accept it,” and “[e]st ablishes good working relationships with other dept. and admin. staff,” however, Ziegler received two twos and a two and a half, respectively. Appellant’s App., Ex. 8. Hodges identified the need to “enhance employee relations and communications” as the second most important and mutually agreed upon objective for Ziegler to accomplish in the next year. Id.

Acc ompanying Ziegler’s 1990 performance evaluation is an interoffic e memorandum from Hodges to Ziegler in which he states that
[t] his is a difficult evaluation in that it reports a slippage from prio r eval uations. . . . [T]he primary area of concern is associate relations

. Th is is an area that must improve during 1991. It was and continues i n 1991 as one of the company goals. Our area management team is ready to assist you and Woodrest in improving this critical area. . . .-4-

Appellant’s App., Ex. 9. While Ziegler’s strengths were still noted, the evaluation was
co nsiderably more negative than in the past. Ziegler received a one in the area o f “[i]nspires employees to perform in an outstanding manner.” Id. Hodges’s writte n comments state “[a]rea of critical concern - autocratic magement [sic] style.” Id. In
co njunction with the category evaluating “[i]s accessible to employees and helpful in resolving their problems,” Hodges note d that “associates [are] reluctant to discuss due to unperdictable [sic] a

ttitude.” Id. Ziegler received twos in the areas of “[d]elegates work to employees . . .” and “[e]stablishes good worki ng relationships with other dept.
an dadmin. staff.” Id. Hodges’s written comments included “[Ziegler] [h]as no t allowed Dept. Mgr’s. freedom to manage their depts.” and “[m]anagement styl e inhibits good relationships.” Id. The objectives section stated “[e]nhance employee relations: Numerous associate complaints,” and it was noted that this objective had not been met during the appraisal period. Id.
Hodg es’s memo to Ziegler in conjunction with her 1991 performance revie w inc ludes high praise for Woodrest’s financial performance an d “outstandin g . . . improvement . . . in the collection of past due receivables. ” Appellant ’s App., Ex. 12. As a result of these successes, Hodges indicated tha t Woodrest had the potential to receive the Beverl y Enterprises E-Award for excellence. Howe ver, Hodges also discussed the largely negative sentiments expressed b y employe es in an “Associate Attitude Survey” conducted by Beverly. Hodge s expressed concern about Ziegler’s troubles with associate relations and her failure to improve in this area. In the memorandum introducing the evaluation Hodges wrote:

The r ecently completed Associate Attitude Survey points out severa l areas of continuing concern. We view this as a very serious deficiency. This is particularly important in light of our emphasis on associat e relations during the past two years. Three areas are of primary concern: consi stent

and fair application of rules and policies; open and hones t communications; facility work atmosphere.-5-

As the top management representative at Woodrest it is you r responsibility to see that these areas of concern are corrected. In ou r discu ssion today I will be offering several suggestions to assist you. I urge you to consider them seriously.
It i s our current intention to conduct a follow up Associate Attitud e Survey in approximately six months. Significant improvement will b e expected. If necessary a follow up performance evaluation will also be given at that time. Consideration of a salary adjustment wi ll be dependent upon improvement is [sic] associate relations. Our hum an resources staff, area cons ultants and I are all available to assist you in meeting th e objective of improved associate relations.
Appellant’s App., Ex. 11. The performance evaluation note d improvement in Ziegler’s plan ning and scheduling performance but reflected the serious concern expressed i n Hodges’s me mo. Ziegler received several twos and a one, all in areas addressin g leadersh ip abilities and employee relations. In his overall evaluation, Hodges agai n rated Ziegler’s performance as unsatisfactory.
The follow-up Associate Attitude Survey indicated that in spite of Woodrest’s subsequent

receipt of the E-Award and its potential to win it again in 1993, little had changed with regard

to employee dissatisfaction at Woodrest. In his memorandum to Zie gler accompanying her 1992 performance evaluation, Hodges directed her to take ten specific steps in a final at tempt to ameliorate her leadership skills and her standing as an administrator among her fellow employees. Hodges concluded the directive by stating:

The acti ons outlined in this memorandum are intended to assist you i n resolvin g the management concerns that have been expressed by th e associates at Woodrest. Actual resolving of th e stated associate concerns remains your sole responsibility.-6-

The continuation of the associa te concerns is a serious matter. You need to be a ware and understand that this performance evaluation is a fina l warning. Further, your failure to comply with any of the actions required in this memorandum may result in your immediate discharge.
Appel lant’s App., Ex. 14. Ziegler received several ones and twos on this evaluation, with wr itten comments reflecting the poor results of the Associate Attitude Survey

. Hodges gave Ziegler an overall unsatisfactory rating. Id.

OnApril 27, 1993, Hodges wrote to Beverly’s Regional Director of Huma n Resources and Vice President of Operations to “request and recommend[] tha t permission be secured from our corporate office to terminate the employ ment of Shirley Ziegler. . . . Associate relations and as sociate morale are at an all time low as a result of the management style of Mrs. Ziegler.” Hodges then provided some backgroun d abou t Ziegler’s employment history and discussed his view that her performance had deteriorated. He provid ed specific examples of faults, and based his recommendation of t ermination on her leadership style. Appellant’s App., Ex. 16. In May of 1993 , Zi egler was offered the choice to resign or be terminated. After failing to resign, she was terminated.
Ziegler filed a charge of discrimination with the Equal Employment Opportunity Commis sion(EEOC), which was cross-filed with the Minnesota Human Right s Co mmission (MHRC). The EEOC investigated, and both the EEOC and the MHRC issued r ight to sue letters. Ziegler filed suit claiming that Beverly terminated he r beca use of her age, in violation of the ADEA and MHRA, and in breach of a n emp loyment

contract. The District Court granted Beverly’s motion for summary judgment, holding t

hat Ziegler failed to establish a prima facie case because of failure to produce evidence that she was performing her job at a level commensurate with her employer’s legitimate expectations. The Court also held that Beverly articulated a-7-

le gitimatereason for the termination, and that Ziegler failed to adduce sufficien t evidence that the proffered reason for the termination was not the real reason.

On ap peal, Ziegler asserts that comments and questions directed to her abou t retireme nt

during the same years in which her evaluations deteriorated raise a n infe rence of a discriminatory motive for the termination. She also contends that th e strong fi nancial performance of the facility during these years undermines Beverly’ s claim that she wa s not fulfilling its expectations. We believe, to the contrary, that the record amply supports the conclusio n that Beverly terminated Ziegler for her failure in the area of associate relations, and fails to raise a genuine issue of material fact tha t Beverly terminated Ziegler because of her age.

II.

To establish a claim under the ADEA, a plaintiff must show that her employer intentionally discriminated against her. Hutson v. McDonnell Douglas Corp. , 63 F.3d 7 7 1, 775 (8th Cir. 1995). To avoid summary judgment in a case in which there is no direct evidence of intentional discriminat ion, plaintiff must establish a prima facie case of age discrimination by producing evidence that (1) she is a member o f a protected age group; (2) she was performing her job at a level that met her employer’s legitimat e e x pectations; (3) she was discharged; and (4) she was replaced by a younger person. See id. at 77 6. Once the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate, non

discrimin atory reason for the employment decision. Id. at 776-77. If the employe r provides a non-discriminatory reason, the presumption of discrimination disappears , andthe burden shifts back to the plaintiff to show that discrimination was the tru e reason for the employment decision. Id.-8- III.

The District Court correctly determined that there was no genuine issue o f materia lfact as to whether Ziegler failed to perform her job at a level that me t Bever ly’s legitimate expectations. Ziegler contends that because she was rate d favora bly overall in her 1988 and 1989 evaluations, and continually received hig h marks for her financial management skills, as evide nced in particular by the E-Awards, she satisfied Beverly’s legitimate expectations. We disagree . Ziegler’s evaluations are reple te with comments directed towards Beverly’s dissatisfaction with Ziegler’ s leadership an d interpersonal skills. Financial management is an important skill for an administra tor, but an employer may legitimately place equal or greater importance on leadership and people skills.
Zieglerrelies on Brewer v. Quaker State Oil Refining Corp. , 72 F.3d 326 (3 d Cir. 1995). Although we find similarities between the cases, the differences ar e significant. Mr. Brewer, who was a salesperson for Quaker State for 24 years, wa s fired in 1992 in spite o f the fact that he had received overall ratings of “competent” in his past five evalua

tions, and was the only salesperson in the Detroit region to exceed his sales quota, and to receive a sales bonus in 1991 and 1992. Id. at 329-30. Quaker State’s reasons for the firing were that Brewer had “ continuous performance problems, including poor follow-up on customer requests, poor communications with clients and with mana gement, [spent] too little [time] in his territory and [submitted] late an d ambiguous sales reports.” Id. at 330. There was also evidence that Brewer ha d demonstr ated these types of deficiencies throughout his tenure at Quaker State

. However, in light of Quaker State’s Executive Vice President of Sales’ statements that “sales volume is ‘extremely important in evaluating a salesperson,’ and represents ‘the best simple measure’ of a salesperson’s performance,” the Third Circuit held thatThe Court also rested its decision on substantial evidence of age animus. 2 -9- Bre wer had met his prima facie case and raised an inference of pretext. Id. at 331-32 2 (citation to record omitted).
We are of course not bound by Br ewer , which comes from another circuit. Even if we were, it would not require a holding for the plaintiff on this record. Ziegler’ s problem s communicating and relating with her staff conflicted with Beverly’s state d performance goals for her. There is no evidence that Beverly believed financial skills
were ei ther the most important standard of her job performance or the best simpl e measure of a supervisor’s performance. Thus, Woodrest’s receipt of the E-Award is not analogous to the sales bonuses awarded to Brewer. Rather, Ziegler’s problem s dimini shed her effectiveness as a supervisor. Beverly documented this deficiency as a gro wing concern, and the employee-attitude surveys contributed to and reinforced this vi ew. The District Court correctly determined that Ziegler failed to establish a prim a facie case of age discrimination.

Inaddition, we agree with the District Court that Beverly offered a legitimate , non-discriminatory reason for her terminatio n: Ziegler’s poor reviews over a significant period. The Court then examined whether Ziegler raised a factual question that the poor
rev iews were pretextual reasons for her termination. Ziegler states that on fou r occa sions over a period of three years she was asked by Hodges about her plans fo r retirement. She contends that these que stions about retirement, in combination with her p o or evaluations in the same years that Woodrest was receiving the E-Award, suggest age-based animus on the part of Beverly. We think not. Ziegler’s difficulties with leadership and interpersonal skills were noted as early as 1984, and resulted in negative performance evaluations beginning i n 1990. From 1990 forward, Ziegler was on notice that a favorable review was dependent on improvement in these problem areas. Each review was accompanied by offers of assistance from consultants and Beverly’s human resources staff. Hodges’s sugges tions to Ziegler to consider retiring, in our view, showZie gler analogizes the questions and comments Hodges directed to her abou t 3 retirement to the ev idence of age animus presented by prevailing plaintiffs in Hudson v. Normand

y Sch. Dist. , 953 F.2d 410 (8th Cir. 1992), Radabaugh v. Zip Feed Mills, Inc. , 997 F.2d 444 (8th Cir. 1993), and Kehoe v. Anheuser-Busch, Inc. , 995 F.2d 117 (8th Cir. 1993). Without discuss ing in detail the distinguishing aspects of these cases, we obse rve that each turned on evidence of age animus significantly greater than that offered by Ziegler. -10- no more tha n that Hodges wanted Ziegler to leave Beverly. Retirement would hav e 3 been an easier and less contentiou s option, at least from the employer’s viewpoint, than termination. We do not think that suggesting retirement to an employee who is eligible for retirement, and who is not performin g satisfactorily, provides a reasonable basis for inferring age discrimination.

Affirmed.
A true copy.

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