United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1459

_____________ Edward Hennessey, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Good Earth Tools, Inc., * * Appellee. *

_____________ Submitted: September 10, 1997 Filed: October 10, 1997

_____________ Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRI S SHEPPARD ARNOLD, Circuit Judge.

_____________ BOWMAN, Circuit Judge. Good Earth Tools, Inc. hired Edward Hennessey when he was fifty-five years old and fired him when he

was fifty-nine. Good Earth claimed that it fired Hennessey be cause of unsatisfactory work; Hennessey disagreed. He sued Good Earth for ag e discrimination in violation of the federal Age Discrimination in Employment Ac t (" ADEA"), 29 U.S.C. §§ 621-634 (1994 & Supp. 1 1995), and the Missouri Huma n Rights Act ("MHRA"), M o. Rev. Stat.§§ 213.010 -.137 (1994 & Supp. 1 1996). TheThe H onorable Stephen N. Limbaugh, United States District Judge for th e 1 Eastern District of Missouri. The same test applies under both the ADEA and the MHRA. The two statutes 2 have f unctionally identical language. See 29 U.S.C. § 623(a)(1); Mo. Rev. Stat

. § 213.0 55-1(1)(a). Federal decisions, moreover, are applicable to employmen t discrimination cases under the MHRA. See Midstate Oil Co. v. Missouri Comm'n on Human Rights , 679 S.W.2d 842, 845-46 (Mo. banc 1984); Cook v. Ato ma Int'l of Am., Inc. , 930 S.W.2d 43, 45-46 (Mo. Ct. App. 1996). -2- Distri ctCourt granted Good Earth's motion for summary judgment, and Hennesse y

1 now appeals.
We review a grant of summary judgment de novo. Rothmeier v. Investmen t Advisers, Inc. , 85 F.3d 1328, 1331 (8th Cir. 1996). Summary judgment is appropriate when there is no genuine issue of material fact and, accordingly, no reasonable jur y could find in favor of the nonmoving party. See Fed. R. Civ. P. 56(c); Anderson v

. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (19 86). Where an age discrimination claim rests on circumstantial evidence of discrimination, as Hennessey's does, courts apply a three-step test to evaluate the claim. Roth meier , 85 F.3d at 1332. First, the plaintiff 2 must p resent a prima facie case of discrimination. Second, if the plaintiff presents a prima facie case, the defendant must articulate a nondiscriminatory reason f or its action. The burden then shifts b ack to the plaintiff to show that the offered reason is merely a pre text and that the defendant intentionally discriminated against him. Id. at 1332 , 1334; Ryther v. Kare 11 , 108 F.3d 832, 836 (8th Cir.) (en banc), cert. denied , 11 7 S. Ct. 2510 (1997). We hold that even if Hennessey, contrary to the District Court's det ermination, did est ablish a prima facie case under the ADEA and MHRA (a question we need not and do not d ecide), he did not present evidence sufficient to support a finding that Goo d Earth's declared reason for firing him was a pretext for age discrimination. Good-3-

Earth claim s that it fired Hennessey for his inadequate job performance. Hennesse y claims that he was fired not f or subpar work but for several other reasons, including his age. Hennessey has produced, however, no evidence of age discrimination whatsoever. Indeed, Hennessey acknowledges that he was fired largely for reasons other than his age. His brief states that "he was overpaid and doing an unnecessary job." Brief fo r Appellant at 13. Even if Hennessey could prove th at this was true, and that he therefore was not fired for poor work as Good Earth claims, this would not help his case

. Em ployers do not violate the law by discriminating against overpaid, unnecessar y employees. To survive a motion for summary judgment, Hennessey must r aise a genuine issu e of material fact as to whether Good Earth's claimed reason for firing him was a pretext for age discrimination , not for some other, legitimate motive. See Rothmeier , 85 F.3d at 1334. This he has not done. Moreover, Good Earth's hi ring of Hennessey at age fifty-five, when he was well within th e age group protected by the ADEA, suggests that Good Ea rth was not influenced by ageism in firing him four years later. See Lowe v

. J.B. Hunt Transp., Inc. , 963 F.2d 173, 175 (8th Cir. 1992) ("It is simply incredible, in light of the weakness of plaintiff's evidence otherwise, that the company officials who hired him at age fifty-one h ad suddenly developed an aversion to older people less than two years later."). Having reviewed the record, we conclude that Hennessey did no t creat e a genuine question of fact as to whether age discrimination motivated hi s dismissal. We affirm the summary judgment for Good Earth Tools. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT