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Ramlet v. E.F. Johnson Co.: EMPLOYMENT - no direct evidence of age discrimination: comments not linked

1The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
United States Court of Appeals
No. 07-1089
Jerald Ramlet, *
Appellant, **
Appeal from the United States
v. * District Court for the District of
* Minnesota.
E.F. Johnson Company, **
Appellee. *
Submitted: September 27, 2007
Filed: November 16, 2007
Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Jerald L. Ramlet appeals the district courts1 grant of summary judgment to E.F.
Johnson Company on his claims under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. 623(a), and the Minnesota Human Rights Act (MHRA), Minn.
Stat. 363A.08(2). Having jurisdiction under 28 U.S.C. 1291, this court affirms.
In 2001, E.F. Johnson hired Ramlet as Vice President of Sales. In 2003, he
voluntarily accepted a different position, Director of Sales for the Central United
States. He was initially responsible for sales in fourteen states, although three states
were later deleted but two different states added.
In 2004, Ramlet began reporting to John Suzuki, who had assumed his former
job as Vice President of Sales. In 2005, due to Ramlets low sales numbers and
concentration of phone calls within Minnesota (which accounted for only one percent
of his business), Suzuki suspected that Ramlet was working for another company, in
violation of E.F. Johnsons ethics code.
On July 5, 2005, Suzuki relayed his concerns to Brenda S. Jackson, Executive
Vice President of Sales and Marketing. They decided to instruct Ramlet to devise a
territory transition plan, reassigning six of Ramlets states to two other salespersons
(ages 54 and 57). Additionally, without telling Ramlet, Jackson instructed the IT
department to copy the files from his company-provided laptop. Reviewing the
copied files, Jackson discovered: a business plan that listed Ramlet as an officer
several times; e-mail communications between Ramlet and his wife that Jackson
believed indicated they were starting a business; and e-mail communications between
Ramlet and a former co-worker that Jackson believed indicated Ramlet visited strip
clubs and/or solicited prostitutes while on business trips.
Jackson informed E.F. Johnsons president, who instructed her to work with
Michael B. Gamble, Vice President of Administration. Jackson recommended to
Gamble that Ramlet be terminated; Gamble agreed. On August 18, 2005, Gamble
and Suzuki informed Ramlet that his employment was terminated because he was the
owner and president of another business. While Suzuki e-mailed the staff to announce
Ramlets termination, Gamble and Ramlet met. Ramlet denied any involvement with
another business. Gamble agreed to delay the termination so he could investigate
Meanwhile, two E.F. Johnson employees contacted Ramlet about comments by
Suzuki. One told Ramlet that, over a year before, Suzuki had said he wanted to hire
a bunch of young, dumb, and full of cum guys. Another (former) employee told
Ramlet that Suzuki had said he intended to hire young studs to replace the older
sales people (the date of this statement is not clear but was between May 2004 and
April 2005).
After further investigation, Ramlets termination was made effective September
2, 2005. He was 42 years old. Ramlet received a termination letter, listing three
reasons: (i) failure to meet satisfactory sales activity; (ii) failure to meet revenue
objectives; and (iii) a willful failure to perform duties with the Company. Ramlets
remaining seven states were after temporary arrangements permanently reassigned
to Rich Gruitch, a new hire age 41, and Joe Heersche, a current salesperson age 37.
Ramlet sued E.F. Johnson, claiming age discrimination in violation of the
ADEA and the MHRA and a variety of state law claims. The district court granted
E.F. Johnson summary judgment on the age discrimination claims, and refused
supplemental jurisdiction over the other state law claims. Ramlet appeals.
This court reviews the grant of summary judgment de novo, viewing the record
in the light most favorable to the non-moving party. Lewis v. St. Cloud State Univ.,
467 F.3d 1133, 1135 (8th Cir. 2006). Summary judgment is proper if the record
shows that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); E.E.O.C. v. City
of Independence, Mo., 471 F.3d 891, 894 (8th Cir. 2006).
The ADEA provides: It shall be unlawful for an employer . . . to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individuals age. 29 U.S.C. 623(a)(1). MHRA age discrimination claims are
analyzed under the same framework. Chambers v. Metro. Prop. & Cas. Ins. Co., 351
F.3d 848, 855 (8th Cir. 2003). An age discrimination plaintiff may survive the
defendants motion for summary judgment either by setting out direct evidence of
discrimination or by creating an inference of discrimination under the McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. McGinnis
v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir. 2007).
Ramlet argues that Suzukis comments are direct evidence of age
discrimination. [D]irect evidence is evidence showing a specific link between the
alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th
Cir. 2004), quoting Thomas v. First Natl Bank of Wynne, 111 F.3d 64, 66 (8th Cir.
1997). In this context, whether evidence is direct depends on its causal strength. Id.
[D]irect evidence does not include stray remarks in the workplace, statements by
nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process itself. Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d
631, 635 (8th Cir. 1998), quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277
Suzukis comments are not direct evidence. Assuming Suzuki was a
decisionmaker, Ramlet has not demonstrated a specific link between the comments
and his termination. The comments were not related to the decisional process as the
most recent occurred at least four months before Ramlets termination, and both were
made to employees not involved in the decisional process. See, e.g., Twymon v. Wells
Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006); Arraleh v. County of Ramsey, 461
F.3d 967, 975 (8th Cir. 2006). Further, an inference is required to connect the
statements to Ramlet, as they do not mention him or indicate that Suzuki considered
him older. See Erickson v. Farmland Indus., Inc., 271 F.3d 718, 725 (8th Cir.
2001) (Making this comment into evidence of age animus requires an inference, and
the comment therefore does not directly reflect an attitude of discrimination based on
age.). Standing alone, Suzukis comments are not sufficient to find that age
discrimination actually motivated Ramlets termination. See Radabaugh v. Zip Feed
Mills, Inc., 997 F.2d 444, 449-50 (8th Cir. 1993) (repeated statements that company
was young, mean and lean, in addition to other evidence and corporate planning
documents emphasizing youth, support an inference of age discrimination).
Ramlet argues that he has created an inference of discrimination. Under the
McDonnell Douglas burden-shifting framework, the plaintiff initially has the burden
to establish a prima facie case of discrimination. McDonnell Douglas Corp., 411
U.S. at 802. A prima facie case creates a rebuttable presumption of discrimination.
Kohrt v. MidAmerican Energy Co., 364 F.3d 894, 897 (8th Cir. 2004). The burden
then shifts to the defendant to provide a legitimate, nondiscriminatory reason for the
adverse employment action. McDonnell Douglas Corp., 411 U.S. at 802. If the
defendant provides such a reason, the presumption disappears, and the burden shifts
back to the plaintiff to show that the proffered reason was pretext for age
discrimination. Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1035 (8th Cir. 2005). At
all times, the ultimate burden of persuasion is on the plaintiff. Lewis, 467 F.3d at
To satisfy the prima facie burden in an age discrimination termination case,
Ramlet must show he was: (1) a member of the protected class, i.e., at least 40 years
old; (2) qualified for his position; (3) terminated; and (4) replaced by someone
sufficiently younger to permit an inference of age discrimination. McGinnis, 496
F.3d at 875. In reduction in force (RIF) cases where the plaintiffs duties are either
eliminated or redistributed to remaining workers, the fourth element is satisfied by
showing that age was a factor in the termination. Id. at 875 n.4 (proof that age was
a factor in the termination is needed only in reduction in force cases); Hitt v. Harsco
Corp., 356 F.3d 920, 924 (8th Cir. 2004); Chambers, 351 F.3d at 855-56; Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995).
When Ramlet was terminated, he was responsible for sales in seven states.
Those seven states were permanently reassigned to one existing salesperson and one
new salesperson, ages 37 and 41. See Lewis, 467 F.3d at 1136 (the important datum
here is the age of the person whom the [employer] chose as [the employees]
permanent replacement). Ramlet argues that the alternate fourth element applies,
even though this is not a RIF case, because his territory was reassigned to several
people and therefore he was not replaced. However, unlike a RIF case, E.F. Johnson
did not eliminate or redistribute all Ramlets duties, but instead specifically hired
someone to assume three of Ramlets seven states. Therefore, the alternate fourth
element does not apply.
Under the traditional fourth element, the ages of Ramlets replacements are not
sufficient to permit an inference of age discrimination. The new hire, Gruitch, was 41,
clearly not sufficiently younger. Even if only the younger replacement is considered,
this five-year difference is not sufficient. See id. (a five-year age difference is
insufficient to establish a prima facie case).
Because Ramlet failed to carry his burden by establishing a prima facie case of
age discrimination, summary judgment in favor of E.F. Johnson is appropriate.
The judgment of the district court is affirmed.


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