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Ward v. International Paper Co.: EMPLOYMENT - no prima facie case age a factor in reduction in force; summary judgment dismissing ADEA

1 The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
United States Court of Appeals
No. 06-2256
Harold Ward, *
Plaintiff Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
International Paper Company, *
Defendant Appellee. *
Submitted: October 17, 2007
Filed: December 5, 2007
Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
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.
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
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). Wards
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. Wards supervisor requested that he implement a new system to improve
planning, scheduling, inventory control, and preventive maintenance. The supervisor
later acknowledged that Wards implementation of the new system played a
significant role in the plants financial success the following year. At the end of 2001,
he received a Key Contributor rating, IPs 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. Wards 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 Wards 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
duties of Wards 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.
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).
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).
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 courts 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 Courts statement that because a prima
facie case and sufficient evidence to reject the employers 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 courts 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 employers proffered non-discriminatory explanation. The
Supreme Court held that under McDonnell Douglas, the plaintiff did not need to
produce any additional evidence after making a prima facie case and discrediting the
employers 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
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. Marys 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 OConnor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312
(1996)(emphasis omitted), quoting Intl 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 plaintiffs job is eliminated and/or redistributed to other
workers. That a younger employee assumed some of plaintiffs duties does not
establish a prima facie case because often at least one younger worker receives some
of plaintiffs duties. See OConnor, 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
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 plaintiffs evidence was that 13 of the 15 employees terminated were over
Ward counters that a substantially younger employee is now performing his
former job. In fact, the younger employee did not take over Wards job. When
Wards 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 Wards old duties, but the job as a whole was
not the same as Wards.
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 Wards position was eliminated. The younger employees 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, Wards
duties that were not eliminated were spread among remaining employees at the
graphics facility, both younger and older than he. Wards 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 Wards duties. The record does not support the contention
that Wards 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
that younger employees assumed some of [plaintiffs] 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 businesss 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. Dept. 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
Wards 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
Finally, Ward argues that the plant managers 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.
Ward argues that the above evidence also shows that IPs 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.
The judgment of the district court is affirmed.


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