1The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge

for the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1447

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Robert W. Doerhoff, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

McDonnell Douglas Corporation, *

* 

Appellee. *

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Submitted: December 16, 1998

Filed: March 30, 1999

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

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FLOYD R. GIBSON, Circuit Judge.

Robert Doerhoff appeals the district court's1 grant of summary judgment in favor

of his former employer, McDonnell Douglas Corporation (MDC), on Doerhoff's claim

that MDC terminated him in violation of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621-634 (1994). We affirm.
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I. BACKGROUND

Doerhoff began his employment with MDC in 1963 at the age of 27 as an

Inspector-Radio and Electric. During his thirty years with MDC, Doerhoff occupied

a number of positions within the company and received satisfactory performance

evaluations. In 1990, MDC promoted Doerhoff to the position of Lead Technician, a

position he would occupy until his termination in December of 1993. In December of

1992, Doerhoff was assigned to the Space Electronics Power Systems (SEPS) Program.

When the SEPS Program was substantially eliminated one year later, Doerhoff opted

for early retirement in lieu of lay-off. Doerhoff's last day of employment with MDC

was December 31, 1993.

In 1990, as a result of adverse financial and business conditions, MDC began a

series of reductions-in-force (RIFs). The widespread lay-offs spawned a series of

employment discrimination lawsuits. In 1993, MDC entered into a Consent Decree

with the Equal Employment Opportunity Commission (EEOC) which established an

enterprise-wide RIF Management Process. The RIF Management Process is a fourstep process through which employees are selected for lay-off based upon objective

criteria. See Appellant's App. at 29-31. First, MDC arranges employees into skill

groups based upon the program, grade level, and job responsibilities of employees.

Next, the skills most critical for employees within each skill group are identified and

defined. Each skill is then ranked in importance and assigned a point value. Finally,

members of the skill group are ranked on each skill by their immediate supervisors,

creating a Relative Assessment Score (RAS) for each employee.

At the time the SEPS Program was substantially eliminated, Doerhoff's skill

group was comprised of technical employees that were involved in testing and

development in the SEPS Program and had grade levels of 55 to 59. The skill group

consisted of ten employees: two technicians and eight engineers. Six of the

employees, including Doerhoff, were selected for lay-off in December of 1993. Of the
2Doerhoff's RAS was 50.9 out of a maximum 100. The other employees within

the skill group were assessed scores between 53.2 and 81.0.

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six, five employees were able to secure other positions with MDC prior to their lay-off.

Doerhoff was the only employee who did not secure another position with MDC.

Doerhoff, at age fifty-seven, was the oldest, and ultimately only, employee who lost his

job due to the SEPS RIF. His RAS was the lowest in his comparable skill group.2

After receipt of his Right to Sue letter from the EEOC, Doerhoff filed this action,

alleging that MDC violated the ADEA by forcing him to choose between early

retirement and lay off. MDC filed a motion for summary judgment on Doerhoff's claim,

which the district court granted on January 9, 1998. Doerhoff appeals. 

II. DISCUSSION

We review a grant of summary judgment de novo and will affirm the judgment

only if, after reviewing the record in the light most favorable to the Doerhoff, as the

non-moving party, no genuine issue of material fact exists from which a reasonable

juror could find in favor of Doerhoff. See Nitschke v. McDonnell Douglas Corp., 68

F.3d 249, 251 (1995); Fed.R.Civ.P. 56(c). 

As Doerhoff is relying on circumstantial, rather than direct, evidence to prove

his claim of age discrimination, the familiar burden-shifting scheme developed by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies

to this case. Therefore, Doerhoff must first establish a prima facie case of age

discrimination. Once the prima facie case is established, a legal presumption of

unlawful discrimination is created. See St. Mary's Honor Center v. Hicks, 509 U.S.

502, 506 (1993). The burden of production then shifts to MDC to articulate a

legitimate non-discriminatory reason for Doerhoff's termination. If MDC comes

forward with a non-discriminatory explanation, the presumption of unlawful
3The ADEA protects individuals who are at least forty years of age. See 29

U.S.C. § 631(a) (1994). 

4Engineers generally possess a post-secondary degree and perform managerial

or supervisory duties whereas a technician's main duty is to provide support as directed

by an engineer. See Appellant's App. at 130, 142-43, 155-57.

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discrimination drops from the case. See id at 511. The burden of production then

returns to Doerhoff to rebut MDC's explanation by showing that the proffered reason

is actually a pretext for intentional discrimination. See id. at 508. The burden of proof

remains with Doerhoff at all times. See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981). 

To establish a prima facie case of age discrimination in a RIF context, Doerhoff

must show: 1) that he is within the protected age group;3 2) that he met the applicable

job qualifications; 3) that he was terminated; and 4) produce some additional showing

indicating that age was a factor in his termination. See Cramer v. McDonnell Douglas

Corp., 120 F.3d 874, 876 (8th Cir. 1997). For the purposes of this appeal, we will

assume, as did the district court, that Doerhoff established his prima facie case. MDC

articulated a legitimate non-discriminatory reason for Doerhoff's termination -- the RIF

combined with Doerhoff's low RAS. Doerhoff contends that he produced sufficient

evidence to allow a reasonable trier of fact to conclude that MDC's explanation is

merely a pretext for intentional age discrimination. We disagree.

Doerhoff offers, as his primary evidence of age discrimination, that his placement

in a skill group which included eight engineers and two technicians virtually guaranteed

that he would receive a low RAS and therefore be chosen for lay-off.4 Doerhoff claims

that he could not be expected to score as well as the engineers in his skill group and

that MDC manipulated the RIF Management Process in order to justify his termination.

If Doerhoff offered evidence that MDC's RIF Management Process was based upon a

discriminatory policy, he could sufficiently show that MDC's explanation for his
5A failure to transfer claim is a distinct cause of action, separate from the

wrongful termination claim which Doerhoff has brought. Cf. Kehoe v. AnheuserBusch, Inc., 96 F.3d 1095 (8th Cir. 1996).

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termination was a pretext for intentional discrimination. See Nitschke, 68 F.3d at 252

n.3. However, this Doerhoff has failed to do. 

Initially, Doerhoff argues that MDC could not legitimately group employees with

differing job titles into the same skill group. The RIF Management Process requires

the grouping of employees with similar, not identical, job responsibilities and grade

levels. Doerhoff's skill group was comprised of all those technical employees involved

in the SEPS Program with grade levels below 59. In reviewing the RASs of each

member of the skill group, it does not appear that technicians were dealt a

insurmountable blow when they were placed with engineers. Two engineers in

Doerhoff's skill group were assessed RASs of 53.2 and 54.8, only slightly higher than

Doerhoff's score of 50.9. The only other technician in the skill group received a RAS

of 63.3, higher than four of the engineers in the group. Given these facts, we will not

second-guess the wisdom of MDC's decision to place this particular group of

employees together for the purpose of assessing skills. See Hutson v. McDonnell

Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) (unless intentional discrimination is

involved, court does not review the wisdom or fairness of business judgments). We

agree with the district court that the composition of Doerhoff's skill group does not

raise any inference of age discrimination on the part of MDC.

As further evidence of age discrimination, Doerhoff points to the fact that the

five other employees selected for lay-off upon the elimination of the SEPS Program

found other employment with MDC. Although Doerhoff did not bring a failure to

transfer claim5 against MDC, we note that this does not prevent him from attempting

to use MDC's failure to transfer him as evidence that the RIF was a pretext for age

discrimination. Nonetheless, Doerhoff has not presented any evidence from which it
6Although the record is unclear on the point, apparently the five other employees

sent their resumes to other departments throughout the company while Doerhoff failed

to do so. See id. at 70.

7

In his deposition, Doerhoff stated that he once sent his resume to the Job Fair.

 See id. at 71.

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could reasonably be inferred that his age played a role in his failure to secure other

employment with MDC.

Doerhoff was formally advised of the substantial elimination of the SEPS

Program and his impending lay-off on December 8, 1993. See Appellant's App. at 82.

Doerhoff admits, however, that he had been aware of rumors for several months that

at least a portion of the SEPS Program would be eliminated. See id. at 71-73. While

the other SEPS employees selected for lay-off had secured other positions6 with MDC

prior to the official announcement of the RIF, Doerhoff, apparently believing that his

position would not be eliminated, did not attempt to secure another position. Doerhoff

did not apply for any other specific position with MDC and made only minimal efforts

to effectuate a transfer.7 Within fifteen days of his formal notification of the RIF,

Doerhoff opted for early retirement in lieu of lay-off. Under these circumstances, we

do not believe that Doerhoff offered evidence giving rise to a reasonable inference of

age discrimination.

We have considered the other evidence offered by Doerhoff as proof of age

discrimination and find it to be insufficient to withstand MDC's motion for summary

judgment. Accordingly, the district court's order is affirmed. 

III. CONCLUSION

For the reasons set forth above, we affirm the district court's grant of summary

judgment.
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Affirmed.

A true copy.

Attest:

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