1

 The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2256

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Harold Ward, *

*

Plaintiff – Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

 * District of Arkansas.

International Paper Company, *

 *

Defendant – Appellee. *

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Submitted: October 17, 2007 

Filed: December 5, 2007

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Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Harold D. Ward sued his former employer, International Paper Co. (IP), for age

discrimination. The district court1

 granted summary judgment to IP because Ward

failed to produce evidence that age was a factor in his termination. Ward appeals.

Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In 1986, Ward began working at the Conway, Arkansas facility, when it was

owned by another company. After it was sold to Union Camp in 1990, Ward became
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quality manager. Under Union Camp, the graphics and box plants were run as one

unit, with Ward as its quality manager. Union Camp merged into IP in 1999. IP

separated the graphics and box plants, with Ward becoming the quality manager for

the graphics plant (IP hired a different quality manager for the box plant). Ward’s

main duties were working with customer quality issues and implementing the ISO

quality program. In 2000, after the separation, the graphics plant suffered a financial

loss. Ward’s supervisor requested that he implement a new system to improve

planning, scheduling, inventory control, and preventive maintenance. The supervisor

later acknowledged that Ward’s implementation of the new system played a

significant role in the plant’s financial success the following year. At the end of 2001,

he received a “Key Contributor” rating, IP’s highest performance rating.

In 2001, IP headquarters announced a reduction-in-force (RIF) program,

“Functional FAST,” in order to reduce costs. The program was designed to eliminate

salaried positions that could be combined with other positions or eliminated

altogether. IP announced in June 2002 that it intended to sell the Conway facility. As

a result, the Functional FAST program was not fully instituted at Conway. On June

17, 2002, the general manager of the graphics plant announced the anticipated sale of

the facility. Ward alleges that the general manager then suggested that he consider

retiring. Ward’s only response was that he could not afford to retire. This was the

only time the general manager mentioned retirement to Ward. 

Near the end of 2002, IP decided not to sell the Conway facility, and proceeded

to fully implement the Functional FAST program. All salaried management positions

were considered for elimination. The plant general manager, a human resources

employee, and Ward’s direct supervisor were in charge of determining which

positions to eliminate. They identified, among others, the quality manager position,

noting that other IP plants had eliminated it as well. Ward was informed his position

would be eliminated on December 21, 2002. He was 53 at the time. The job of

quality manager was also eliminated at the box plant in Conway. The remaining
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duties of Ward’s position were divided among employees who were both younger and

older than he. 

In May 2003, IP decided to consolidate the graphics and box plants. On April

1, 2005, IP promoted an employee to quality supervisor for the consolidated facility.

Before the promotion, the new supervisor had performed clerical duties at the box

plant and process-improvement duties at the graphics plant. 

Ward sued IP, claiming that it terminated him because of age, in violation of the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). The district

court granted summary judgment for IP because Ward failed to “come forward with

evidence showing that the circumstances permit a reasonable inference that age was

a factor in his termination.”

II.

This court reviews a grant of summary judgment de novo. See Trammel v.

Simmons First Bank of Searcy, 345 F.3d 611, 613 (8th Cir. 2003). Viewing the

evidence in the light most favorable to the non-moving party, the judgment should be

affirmed if there are no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. See Cherry v. Ritenour School Dist., 361 F.3d 474,

478 (8th Cir. 2004). Summary judgement is appropriate where the plaintiff “fails to

make a showing sufficient to establish the existence of an element essential to [his]

case, and on which [he] will bear the burden of proof at trial.” See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

The ADEA prohibits employers from discriminating against employees, age 40

and over, because of their age. 29 U.S.C. §§ 623(a)(1), 631(a). If there is no direct

evidence of discrimination, the case is considered under the three-phase, burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Chambers v. Metro. Prop. and Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003).
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Under this framework, the plaintiff must first establish a prima facie case of age

discrimination. See Chambers, 351 F.3d at 855. Next, the burden shifts to the

employer to offer a legitimate, nondiscriminatory reason for its conduct. Id. If the

employer does so, the plaintiff must demonstrate that the reason offered was pretext.

Id. In cases involving a reduction-in-force (RIF), a plaintiff makes a prima facie case

by establishing: (1) he is over 40 years old; (2) he met the applicable job

qualifications; (3) he suffered an adverse employment action; and (4) there is some

additional evidence that age was a factor in the employers action. See Stidham v.

Minnesota Mining and Mfg., Inc., 399 F.3d 935, 938 (8th Cir. 2005).

A.

Because there is no direct evidence of age discrimination in this case, the

McDonnell Douglas framework applies and Ward must make a prima facie case.

Ward has established three elements in the RIF context; (1) he was 53, (2) he met job

qualifications, and (3) he was terminated. 

Ward argues that the fourth element, additional evidence, should not be a

requirement for a prima facie case. He contends this court’s cases requiring the fourth

element were implicitly overruled by Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133 (2000). Ward points to the Supreme Court’s statement that “because a prima

facie case and sufficient evidence to reject the employer’s explanation may permit a

finding of liability, the Court of Appeals erred in proceeding from the premise that a

Plaintiff must always introduce additional, independent evidence of discrimination.”

Reeves, 530 U.S. at 149. 

Reeves has no effect on this court’s requirement of additional evidence as the

fourth factor of a prima facie case in a RIF. Reeves was not a RIF case. Reeves

addresses what evidence the plaintiff must show after making out a prima facie case

and discrediting the employer’s proffered non-discriminatory explanation. The

Supreme Court held that under McDonnell Douglas, the plaintiff did not need to
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produce any additional evidence after making a prima facie case and discrediting the

employer’s reason. Id. at 146-49 (a jury may find for the plaintiff in this instance, but

is not compelled to do so). Reeves did not speak, by implication or otherwise, to the

requirements of a prima facie case in the RIF context. See Stidham, 399 F.3d at 938

(using the fourth factor in a RIF case after Reeves); Chambers, 351 F.3d at 855

(same).

Additional evidence is a necessary part of the prima facie case in the RIF

context. Under McDonnell Douglas, the prima facie case establishes a presumption

that in the absence of explanation, requires the conclusion that the employer acted in

a discriminatory manner. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507

(1993). Therefore, “the prima facie case requires ‘evidence adequate to create an

inference that an employment decision was based on a[n] [illegal] discriminatory

criterion. . . .’” See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312

(1996)(emphasis omitted), quoting Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 358 (1977). In a non-RIF ADEA case, this requirement may be meet by

producing evidence that a substantially younger worker replaced the plaintiff. See

Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007). In a

RIF case, however, the plaintiff’s job is eliminated and/or redistributed to other

workers. That a younger employee assumed some of plaintiff’s duties does not

establish a prima facie case because often at least one younger worker receives some

of plaintiff’s duties. See O’Connor, 517 U.S. at 311-12 (“As the very name ‘prima

facie case’ suggests, there must be at least a logical connection between each element

of the prima facie case and the illegal discrimination for which it establishes a legally

mandatory, rebuttable presumption.”)(internal citation and quotation marks omitted).

“The ADEA does not require that every plaintiff in a protected age group be allowed

a trial simply because he was discharged during a reduction-in-force.” See Holley v.

Sanyo Mfg., Inc., 771 F.2d 1161, 1165-66 (8th Cir. 1985).

Ward does not meet the fourth element of a prima facie case. Additional

evidence can be statistical or circumstantial. See Hanebrick v. Brown Shoe Co., 110
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F.3d 644, 646 (8th Cir. 1997). Ward put forth evidence that 71 percent of the

positions eliminated in the RIF were held by individuals over the age of 50. Ward did

not, however, proffer any evidence of the number of protected employees before and

after the RIF. “His statistical evidence is meaningless without some analysis of the

age of the entire workforce at [IP] before and after the reduction in force.” See

Chambers, 351 F.3d at 856 (finding no prima facie case for age discrimination in a

RIF where plaintiff’s evidence was that 13 of the 15 employees terminated were over

40). 

Ward counters that a substantially younger employee is now performing his

former job. In fact, the younger employee did not take over Ward’s job. When

Ward’s position was eliminated in December 2002, the younger employee worked at

the box plant in a clerical position. After the consolidation of the box and graphics

plants, the younger employee assumed some new duties at the graphics plant. Some

of these duties were similar to some of Ward’s old duties, but the job as a whole was

not the same as Ward’s. 

In April 2005, the younger employee was promoted to quality supervisor for the

consolidated Conway facility. This does not create an inference of discrimination.

The younger employee did not receive the quality supervisor position until over two

years after Ward’s position was eliminated. The younger employee’s duties as quality

supervisor are substantially different from the duties Ward performed because the

facility is no longer ISO certified. It is undisputed that at the time of the RIF, Ward’s

duties that were not eliminated were spread among remaining employees at the

graphics facility, both younger and older than he. Ward’s position at the graphics

plant was also eliminated during the RIF. There is no evidence that IP planned to

consolidate the graphics and box plants at the time of the RIF, or that IP planned to

give the younger employee Ward’s duties. The record does not support the contention

that Ward’s duties were assigned to this younger employee. The fact that the younger

employee was promoted to a similarly titled position two years after the RIF does not

create an inference of age discrimination. See Hanebrink, 110 F.3d at 646 (“The fact
2

 IP moved to strike the affidavits, but the district court did not rule on the

merits of the motion, which became moot once the court granted IP summary

judgment.

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that younger employees assumed some of [plaintiff’s] duties is insufficient by itself,

however, to establish a prima facie case of age discrimination.”). 

Ward argues that the younger employee was less qualified for the job.

However, “it is not the role of this court to sit as a ‘super-personnel department’ to

second guess the wisdom of a business’s personnel decisions.” See Evers v. Alliant

Techsystems, Inc., 241 F.3d 948, 957 (8th Cir. 2001).

Ward submitted affidavits of three other terminated employees to the district

court.2

 Ward asserts these affidavits are additional evidence of discrimination. Two

of the affidavits contain inadmissible hearsay. See Fed. R. Civ. P. 56(e) (affidavits

supporting and opposing summary judgment “shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall affirmatively

show that the affiant is competent to testify about the matters stated therein”); McKay

v. U. S. Dep’t. of Transp., 340 F.3d 695, 699 (8th Cir. 2003)(finding summaries of

interviews with former employees was double hearsay and not to be considered by the

appellate court under Fed. R. Civ. P. 56(e)). Both affiants state that their positions

were taken over by younger employees and were not eliminated as IP asserted.

Neither affiant has personal knowledge of this, however; one simply “heard” about

it and the other “learned” about it. Nothing in the affidavits indicates a hearsay

exception applies. These affidavits cannot be considered by this court. See McKay,

340 F.3d at 699. 

A third affidavit is based on personal knowledge, but does not create an

inference that Ward was terminated because of age. The affiant states that her boss

told her he was giving her position to a substantially younger employee, and that she

quit because she felt she had no future with IP. The affiant, however, worked in the

accounting department and her boss was not involved in any decision related to
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Ward’s termination. While the affidavit may have some bearing on discrimination as

to the affiant, it does not show that Ward was discriminated against because of age.

See Kight v. Auto Zone, Inc., 494 F.3d 727, 734 (8th Cir. 2007)(employees

terminated by different decision makers are rarely similarly situated); Forrest v. Kraft

Foods, Inc., 285 F.3d 688, 691-92 (8th Cir. 2002)(in order to introduce evidence of

other employees in a discrimination case, the other employees must be similarly

situated). Moreover, the affidavit offers no evidence of systematic discrimination by

IP. 

Finally, Ward argues that the plant manager’s statement that IP eliminated

every position it considered is evidence of discrimination. This statement, even if

true, is not evidence of discrimination. IP determined which positions were to be

eliminated, not which employees. It is uncontroverted that IP had eliminated a similar

position at many other plants, including the other Conway plant. Ward cannot point

to any material fact in dispute that would establish a prima facie case. Therefore,

summary judgment for IP was appropriate.

B.

Ward argues that the above evidence also shows that IP’s non-discriminatory

reason for his termination, a legitimate RIF, is pretext. As Ward did not establish a

prima facie case, this court need not discuss pretext. See Hanebrink, 110 F.3d at 647.

 

III.

The judgment of the district court is affirmed.

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