### The Honorable Mi chael J. Davis, United States District Judge 1 

### for the District of Minnesota. The district cou rt also granted summary judgment in favor of 2 

### Citi zens Security Group, Inc., Citizens Fund Insurance Company , Insurance Company of Ohio, Scott Broughton, and Spencer Broughton on all of Miller's claims, and in favor of all defendants o n Miller's good faith and fair dealing claim and ERISA claim. Miller has failed to discuss these parts of the district court's order , and the district court's decision as to these parties and cl aims is thus final. 

# United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-2160

____________ Robert L. Miller, * * Plaintiff - Appellant, * * v. * * Citizens Security Group, Inc.;* Appeal from the United States Citizens Fund Insurance * District Court for the Company; Insurance Company of * District of Minnesota. Ohio; Citizens Security * Mutual Insurance Company; * Scott Broughton, and other * unknowns; Spencer Broughton, * * Defendants - Appellees. *

____________ Submitted: December 9, 1996 Filed: June 24, 1997

____________ Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

____________ JOHN R. GIBSON, Circuit Judge. Robert L. Miller appeals from the district court’s grant of summary 1 judgment in favor of Citizens Security Mutual In surance Company on his age discrimination and wrongful discharge claims. 2

### 2

Miller argues that the district court erred in granting summary judgment because there was evidence establishing genuine issues of material fact. We affirm.

RayCronk, Citizens' vice-president of claims, hired Miller as a n outside insurance claims adjustor for Citizens, and Miller began working
on July 1 0, 1989. Cronk also hired another outside adjustor, Bruc e Langseth, who is significantly younger than Miller and began working for Citizens shortly after Miller.

Ci tizens employed outside adjustors and inside adjustors to handl e cust omer claims for payment on losses insured by Citizens. Citizen s initi ally assigned a claim to an inside adjustor. The inside adjusto r would do all the work on a claim that could be done from inside Citizens' home of fice. If a claim required work that could not be performed fro m insi de the home office, the inside adjustor would contact an outsid e adjustor. The outside adjustor would perform wh atever work outside of the home office that was necessary to resolve the claim. Cronk supervise d Citizens' inside and outside adjustors.
At first, Citizens failed to give Mi ller specific instructions as to how Citizens expected Miller to handle a claim. However, in January 1990, Cronk told Miller that Citizens expected him to meet two requirements on everyclaim he handled. First, Citizens expected Miller to contact th e claimant within twenty-four hours after he recei ved a claim from an inside adjustor. Second, Ci tizens expected Miller to give the inside adjustor a report on

### The record is not more specific as to Miller's age. 3


### 3 every claim that was not fully resolved within t en days after it was given to him. A fter this January 1990 meeting, Miller understood these tw o requirements and knew that Citizens expected him to meet these requirement s on every claim he handled.

Miller, h owever, failed to comply with Citizens' contact and report requirements on some of the claims he handled af ter January 1990. Several inside adjustors complained to Cronk about Mille r's failure to comply with these requirements. After receiving these complaints, Cronk fired Miller
on March 31, 1992. Miller was fifty-eight or fifty-nine years old whe n Cronk fired him. 3

Like Miller, Langseth also failed to comply with Citizens' contac t and report requirements on some of the claims he handled. Cronk did not fire Langseth.
During Miller's employment with Citizens, Citizens gave him a n employee handbook. T he handbook states on its first page that it "is not all inclusive, nor is it intended to be a contract."

Mi ller filed suit against Citizens claiming that Citizens violate d the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994), by firing hi m because of his age. He also claimed that Citizens' employe e handbook created a contract under which Citizens could only fire him for cause and that Citize ns wrongfully discharged him because it did not have
cause. After both sides conducted discovery, Citizens moved for summary judgment arguing that it fired Miller because of his poor job performance and that its employee handbook did not create a contract. The district court held that Miller failed to establish a

### 4

prima facie case of a ge discrimination because there was no evidence that Miller's job performance met Citizens' legitimat e expectations. The court further he ld that the employee handbook was not a contract because i t specifically stated that it was not intended to be a contract. Due to the lack of evidence showing that Miller's job performance was satisfactory an d the absence of a contract to fire Miller only for cause, the district cour t granted summary judgment in favor of Citizens. Miller appeals.

I.
Miller argues that the district court should not have granted s ummary jud gment on his age discrimination claim because he established a prim a facie case of age discrimination.
We review the district court’s grant of summary judgment de novo and applythe same standards as the district court. See Conner v. Reckitt & Colman, Inc. , 84 F.3d 1100, 1102 (8th Cir. 1996). Summary judgment i s appropriate if there are no genuine issues of material fact and Citizens is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)

. We view all the evidence in the light most favorable to Miller, and give Mille r the benefit of all reasonable inferences. See Johnson v. Grou p Health Plan, Inc. , 994 F.2d 543, 545 (8th Cir. 1993). Miller can establis h a genuine issue of ma terial fact by presenting evidence that would permit a reasonable jury to return a verdict for him onthat issue. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-50 (1986).

Miller re lies on the McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), fr amework to prove his claim of age discrimination. The onl y element of Miller's prima facie case of

### 5

age dis crimination in dispute is the second, which the district cour t articulated as whether Miller was performing his job at a level that met Citizens' legitimate expectations when Citizens fired him. See Halsell v. Kimberly-Clark Corp. , 683 F.2d 285, 290 (8th Cir . 1982), cert. denied , 459 U.S. 1205 (1983); see also O’Connor v. Consolidated Coin Caterers Corp. , 116 S. Ct. 1307, 1310 (1996).

A.

Miller ar gues that he was qualified for the position of outsid e adjus ter. He first contends that the district court made an erroneou s articulation of the q ualification element of the prima facie case when it required him to show that he was "performing his job at a level which met [Cit izens'] legitimate expectations." He cites Davenport v. Rivervie w Gardens School District , 30 F.3d 940 (8th Cir. 1 994), and Hase v. Missouri Divi sion of Employment Security , 972 F.2d 893 (8th Cir. 1992), cert
. deni ed , 508 U.S. 906 (1993), which simply expressed the element as a showing that the employee was "qualified for his position."

The di strict court did not err in articulating this element a s perf ormance of the job at a level that met the employer's legitimat e expectations. McDonnell Douglas makes plain that the facts in Title VII
ca ses will vary, and that the prima facie proof required is "no t necessarily applicabl e in every respect to differing factual situations." 411 U.S. at 802 n.13. In Halsell the plaintiff brought an ADEA claim base d on his discharge, andwe held, relying on Loeb v. Textron, Inc. , 600 F.2d 1003, 1013-14 (1st Cir. 1979), another age discrimination case arising fro m a discharge, that a correct statement of the McD onnell Douglas prima facie elements adapted to those circumstances was that the employee

### 6

"was perfo rming his job at a level that met his employer's legitimat e expectations." Halsell , 683 F.2d at 290. We have reiterated this standar d
on numerous occasions. See Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382-83 (8th Cir. 1994); Miner v. Bi-State Dev. Agency , 943 F.2d 912, 913 (8th Cir. 1991); Crimm v. Missouri Pac. R.R. , 750 F.2d 703, 711 (8th Cir. 1984).

B.

We have affirmed summary judgments on the grounds that a plaintif f has fail ed to present a prima facie case, which was the holding of th e district court in this case. See Lang v. Star Herald , 107 F.3d 1308, 1312

- 13 (8th Ci r. 1997); Harlston , 37 F.3d at 383. Miller argues that h e presented sufficient evidence to establish the s econd element of his prima facie case.

None of Miller's evidence creates a genuine issue of material fac t as to whether he was meeting the legitimate expectations of Citizens when Ci tizens fired him. Miller stated in his affidavit that his jo b performance did meet Citizens' expectations. A conclusory statement in an affidavit, however, cannot create a genuine issue of material fact which precludes summary judgment. See Jackson v. Anchor Packing Co. , 994 F.2d 1295, 1303-04 (8th Cir. 1993).
Miller also points to three evaluations of his work at Citizens which show that he was perf orming satisfactorily in his job. These evaluations date from April 18, 1990, July 26, 1990, and January 16, 1991. We conclud e that these evaluation s are not evidence that Miller was meeting Citizens' legitimate expectations when Citizens fired him because they are too far
remo ved in time from the date of Miller's discharge, March 31, 1992

. Miller has

### Miller asserts that Cronk did not mention his job performance 4 

### when Cronk fired him. Instead, Cronk merely stated that Mil ler was "not a f it" with Citizens. Miller's citation to the record doe s not support his assertions. Appellant's Brief at 13, 20-21, 2 6 (citing Appellant's Appendix a t 100377-83, 100470-71). We decline to searc h the record for error and thus refuse to consider thes e two as sertions. See Farmland Indus. v. Frazier-Parrot t Commodities, Inc. , 871 F.2d 1402, 1407 (8th Cir. 1989).
7 not pr esented any evidence that he was meeting Citizens' legitimat e expectations at any time during the year before he was fired.

Miller states that Citizens only told him once that his jo b performance was unsat isfactory. Miller argues that this is evidence that he was meeting Citizens' legitimate expectations. We reject Miller' s
ar gument; the fact that Citizens only told him once that his jo b performance was unsatisfactory is not evidence that his job performance wa s satisfactory. 4

We conclude that Miller failed to establish the second element of his prima facie case, and thereby failed to make a prima facie case. Except for his own conclusory statement, Miller has presented no evidence that hi s job performance met Citizens' legitimate expectations at the time of his discharge. The district court did not err in so holding. See Harlston , 37 F.3d at 382-83.

II.

If the ca se proceeds beyond the prima facie case to articulation of a legitimate nondiscr iminatory reason, and possibly thence to pretext, we reach issues that this Court en banc has recently discussed in detail in Ryther v. KARE 11 , 108 F.3d 832 (8th Cir. 1997) (en banc), petition fo r
cer t. filed , 65 U.S.L.W. 3694 (U.S. April 4, 1997) (No. 96-1571). W e stated tha t for a plaintiff to succeed, simply proving pretext is no t necessarily

### 8

enough if it is inconsistent with a reasonable inference of ag e discrimi nation. Id. at 837. We cited with approval Rothmeier v

. Investment Advisers, Inc. , 85 F.3d 1328 (8th Cir. 1996), which held that to survive summary judgment a plaintiff must present evidence of pretext and evide nce from which a reasonable jury could infer that he was fire d because of his age. Id. at 1336-37.

The dis trict court in its order stated that Miller's attack on th e honest yof the explanation "imperceptibly" shades into the issue o f pretext, and this makes it desirable that we bri efly discuss the issues of pretext raised by Mil ler. We only briefly treat the arguments raised, as it is evi dent not only that Miller failed to establish pretext, but hi s argument, other than a flat general statement, simply fails to deal with his ultimate burden of persuading the court that he has been the victim of intentional discrimin ation. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515, 519 (1993); Ryther , 108 F.3d at 837-38; Rothmeier , 85 F.3d a t 1337.
For evidence of pretext, Miller points to his statement that Ci tizens only told him on one occasion that his job perfo rmance was unsatisfactory. This statement, however, does not prove that Citizens' reason for firing Mi ller, unsatisfactory job performance, is a pretext for ag e discrim ination. On the contrary, it reinforces Citizens' explanatio n because it is evidence that Citizens considered Miller's job performance to be unsatisfactory. Addit ionally, there is uncontradicted evidence in the record tha t Cit izens told Miller four months and two and a half months before hi s discharge that there were problems with his job performance. Miller admit s that four months before his discharge, Cronk sent Miller a memo statin g that ther e was "a very serious problem with your work," and that i f Miller's job performance did

### 9

not improve drastical ly, Citizens and Miller "might be parting company!!" Miller also does not deny that Cronk wrote an evaluation of Miller's job performance which mentioned several problems with Miller's work, that Cron k discussed the evaluation with Miller, and that Miller signed the evaluatio n two and a half months before Citizens fired him. The evaluation and the
memo show that Citizens told Miller twice within four months of hi s discharge that there were problems with his job performance.

Miller argues that Cronk failed to identify during his depositio n spec ific instances of Miller's poor job performance and that this i s evidence of pretext. Cronk gave his deposition almost three years after he fired Miller from Citizens. During that deposition Cronk stated severa l tim es that he was aware of specific instances of Miller's poor jo b perfo rmance when he supervised and fired Miller, but that he could no t presently recall the details of those incidents. Miller does not dispute that Cronk was aware of specific instances of Miller's poor job performanc e when he supervised and later fired Miller; there fore, Cronk's inability to remember t he details of those same incidents at his deposition is no t sufficient to create a material issue of fact. Cf. Aucutt v. Six Flags Over Mid-America, Inc. , 85 F.3d 1311, 1317-18 (8 th Cir. 1996) (citing Gill v. Reorganized Sch. Dist. R-6 , 32 F.3d 376, 379 (8th Cir. 1994)). Miller argues that his job performance was as good as Langseth' s, and yet Citizens fired hi m, but not the younger Langseth. Miller attempts to show that his job performance was equal to or better than Langseth's b y submitting the affidavit of Kathryn Smith. Smith reviewed a small fractio n of Citizens' claim files to determine how often Miller and Langset h complied with Citizens' notice and report requirements in those files. Th e problem with Smith's review is that there is no indication that the

### 10

files she reviewed are representative of Miller's and Langseth's overall job performance at Citizens. For example, to evaluate Miller's jo b performance, Smith only reviewed the files Miller had in his possession. There i s no evidence, however, that these files are representative o f Miller's overall job performance at Citizens. Thus, Miller failed to prov e that hi s job performance was similar to Langseth's, and therefore, n o
reason able fact finder could draw an inference of discrimination fro m Citizen s' firing of Miller and continued employment of Langseth. Se e Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 972-73 (8th Cir. 1994).
Finally, Miller argues that he recei ved less extensive training than Langse th and that this is evidence of pretext. Miller states in hi s aff idavit that after his January 1990 meeting with Cronk, he understoo d Citizens' contact and report requirements and that Citizens expected him to comply with those requirements on every file he handled. Miller also admits in his affidavit that he failed to comply with those requirements after January 1990. Cronk states in his affidavit and deposition tha t Miller 's continued failure to comply with Citizens' contact and repor t requiremen ts after January 1990 caused him to fire Miller. Thus, th e undisputed record shows that a lack of training had nothing to do wit h Citizens' firing of Miller. We think it abundantly clear that the district court did not err in entering summary judgment on behalf of Citizens. For, contrary to what we have held above, even if we concede that Miller has presented a prima faci e case, and if we further concede that Miller's arguments demonstrat e pretext, there simply is no showing in the record before us that Miller ha s met his ultimate burden of establishing that age discrimination was th e
cause for his discharge. Our conclusions are further reinforced by Cronk' s hiring of Miller less than three years before his firing of Miller.

### 11

As we have stated in similar cases, it is simply incredible, in light of the weakness of Mille r's evidence otherwise, that Cronk, who hired Miller when Miller was age fifty-five or fifty-six, had suddenly developed a n aversion to older people when he fired Miller le ss than three years later. See Lowe v. J.B. Hunt Transport, Inc. , 963 F.2d 173, 175 (8th Cir. 1992). Citize ns is entitled to summary judgment on Miller's age discriminatio n claim. See Hopper v. Hallmark Cards, Inc. , 87 F.3d 983, 988-89 (8th Cir. 1996).

III.
Miller argues that a provision in Citizens' employee handbook c reated a contract that oblig ated Citizens to fire him only if Citizens had cause to do so. Miller contends that Citizens did not have cause to fire him an d therefore breached the contract created by the handbook.

Bo th parties agree that Minnesota law governs this claim. Unde r Minnesota law, a provision in an employee handbook can be a bindin g contract between an employer and his employees if it meets certai n requirements. See Pine River State Bank v. Mettille , 333 N.W.2d 622 (Minn

. 1983). Citizens' employee handbook, however, states on its first page tha t it is not intended to be a contract.

The Minne sota Supreme Court has not ruled on the effect of such a disclaimer in an employee handbook. We must, therefore, predict the resul t the Minne sota Supreme Court would reach on this issue. See B.B. v
. Continental Ins. Co. , 8 F.3d 1288, 1291 (8th Cir. 1993). We may look to the decisions of the Minnesota Supreme Court and the Minnesota Court o f Appeals for guidance. See id.
The Minnesota Supreme Court has stated that a disclaimer

### Ou r recent decision in Patterson v. Tenet Healthcare, Inc. , 5 

### No. 96- 2587 (8th Cir. May 12, 1997), is not to the contrary

. Patter son recognized that employee handbooks are not contract s under Missouri law, but that an acknowledgment form in the h andbook that Patterson signed contained an agreement to arbitrate wh ich was an enforceable contract under Missouri law. Slip op. at 3-5.
12 stating t hat an employee handbook "shall not be construed to form a contract" prevents an employee from claiming con tractual rights under that handbook. Feges v. Perkins Restaurants, Inc. , 483 N.W.2d 701, 705, 70 8 (Minn. 1992). While the court's statement in Feges is dicta, we conclude that it indicates the position the court would take on this issue. Ou r conclusion is reinforced by the holdings of two decisions of the Minnesota Cou rt of Appeals. See Michaelson v. Minnesota Mining & Mfg. Co. , 47 4 N.W.2d 17 4, 180 (Minn. Ct. App. 1991), aff'd mem. , 479 N.W.2d 58 (Minn

. 1992); Audette v. Northeast State Bank , 436 N.W.2d 125, 127 (Minn. Ct. App

. 1989). The Minnesota Court of Appeals held in M ichaelson and Audette that
a d isclaimer in an employee handbook prevents an employee from claimin g contractual rights under that handbook. Based on Feges , Michaelson , and Audett e , we hold that the disclaimer in Citizens' employee handboo k prevents Miller from claiming contractual rights under Citizens' handbook.

In so holding, we reject the district court's interpretation o f Minnesota law in O'Brien v. A.B.P. Midwest, Inc. , 814 F. Supp. 766, 776 (D

. Minn. 1992). We conclude that the Minnesota Sup reme Court would hold that
a disclaimer prevents an employee from claiming contractual rights under
an employee handbook even when other provisions of the handbook ar e specific and unequivocal. See Feges , 483 N.W.2d at 705, 708 (stating in dicta that a disclaim er in an employee handbook would prevent an employee from claiming contractual rights under another handbook provision which wa s specific and unequivocal). 5

### 13 Accordingly, we affirm the district court's grant of summary ju dgment in favor of Citizens.

A true copy.

Attest:

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