Lewis v. Aerospace Community Credit Union, s. 96-2692

• Decision Date: 03 July 1997
• Docket Number: Nos. 96-2692,96-3130,s. 96-2692
• Citation: 114 F.3d 745
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1443, 70 Empl. Prac. Dec. P 44,727 Paul E. LEWIS, Appellant, v. AEROSPACE COMMUNITY CREDIT UNION, a Missouri corporation, Appellee. Gregory F. KELLEHER, Jr., Appellant, v. AEROSPACE COMMUNITY CREDIT UNION, a Missouri corporation, Appellee, Nina G. Pilger, Defendant, American Association of Retired Persons, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 745

114 F.3d 745

74 Fair Empl.Prac.Cas. (BNA) 1443,

70 Empl. Prac. Dec. P 44,727

Paul E. LEWIS, Appellant, v. AEROSPACE COMMUNITY CREDIT UNION, a Missouri corporation, Appellee.

Gregory F. KELLEHER, Jr., Appellant, v. AEROSPACE COMMUNITY CREDIT UNION, a Missouri corporation, Appellee, Nina G. Pilger, Defendant, American Association of Retired Persons, Amicus Curiae.

Nos. 96-2692, 96-3130.

United States Court of Appeals Eighth Circuit.

Submitted March 10, 1997.

Decided May 29, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied July 3, 1997.

Norvel E. Brown, argued, Centralia, IL, for appellant.

James N. Foster, Jr., argued, St. Louis, MO (Geoffrey M. Gilbert, on the brief), for appellee.

Before FAGG, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.

Paul E. Lewis and Gregory F. Kelleher, Jr. each appeal from a grant of summary judgment by the Eastern District of Missouri ¹ to their former employer, Aerospace Community Credit Union ("Aerospace"), dismissing their discrimination claims brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994). Because we agree with the district court that neither plaintiff has presented sufficient evidence of discrimination to survive summary judgment, we affirm both decisions.

I.

In 1986, when he was forty-six years old, Kelleher began working for Aerospace as a loan manager and in 1992, he became manager of one of the credit union's branch offices. Lewis began working for Aerospace in 1991, at age forty-seven as the Vice President of Management Information Systems, a new position created to oversee the expansion of Aerospace's computer system and the conversion of a recently-merged credit union to the same system.

In the early 1990s, Aerospace experienced financial troubles. The state and federal agencies in charge of monitoring the credit union's financial stability were critical of its performance and recommended that it develop a plan to reduce its net operating expenses. As part of its plan, Aerospace reduced office expenses such as travel, training, and maintenance, and centralized its lending activities to one of three branch offices. Aerospace also eliminated several positions: the Executive Vice President, the Executive Secretary, Lewis's position, and all three branch manager positions. As a result, Aerospace fired Kelleher and Lewis on October 31, 1994. Kelleher was fifty-four years old at the time and Lewis was fifty. According to Kelleher and Lewis, three of the four persons whose positions were eliminated and who did not find other work in the credit union were over fifty; the two employees who found other work with Aerospace were under fifty. Aerospace acknowledges that neither Kelleher nor Lewis experienced any performance problems and asserts that, but for the company's need to reduce expenses, neither would have been fired.

After exhausting their administrative remedies with the Equal Employment Opportunity Commission, Kelleher and Lewis each initiated a lawsuit against Aerospace, alleging that its decision to terminate their positions was made on the basis of age and that it had a disparate impact on persons over the age of fifty. ² Aerospace moved for summary judgment in each case, arguing that as to their claims of disparate treatment, neither claimant could establish a prima facie case of age discrimination and that even if they could, they had not rebutted Aerospace's legitimate reasons for the reduction decisions. Aerospace also argued that disparate impact claims are not cognizable under the ADEA and that even if they were, Kelleher and Lewis had not presented sufficient evidence to survive summary judgment. In each case, the district court granted summary judgment for Aerospace on both the disparate treatment and the disparate impact claims. Kelleher and Lewis appeal.

II.

We review the grant of summary judgment de novo to determine whether the record viewed in the light most favorable to the nonmoving party, reveals any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

A. Disparate Treatment

We review Kelleher's and Lewis's age discrimination claims, based largely on circumstantial evidence, under the familiar McDonnell Douglas, burden-shifting analysis. Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 289 (8th Cir.1982) (McDonnell-Douglas framework applicable to ADEA claims). Under that analysis, if a plaintiff demonstrates a prima facie case of discrimination, the employer must offer a legitimate, nondiscriminatory explanation for its employment decision. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Once the employer meets its burden of production, the legal presumption raised by the prima facie case is rebutted and the plaintiff retains the ultimate burden of persuading the trier of fact that the employer's true motivation for the challenged employment decision was intentional discrimination. Hicks, 509 U.S. at 508, 113 S.Ct. at 2747-48 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095).

1. Kelleher

There is no dispute that Kelleher was over forty years old at the time of his discharge, that he was qualified for the job, and that he was discharged. In addition to these basic requirements, Kelleher points to the circumstances surrounding his discharge as circumstantial evidence that his age was a motivating factor in Aerospace's decision to fire him. All three branch manager positions were eliminated, but the two other employees who had been branch managers and who were under age fifty were reassigned within the credit union to new positions not offered to Kelleher. Although redistribution of a discharged employee's duties to younger employees is insufficient by itself to establish a prima facie case of age discrimination, Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 763 (8th Cir.1995), this case appears to involve more than mere redistribution of duties. After Aerospace determined that the branch manager positions were to be eliminated, the only branch manager who ultimately lost his job, Kelleher, was over fifty. Thus, the specific circumstances of this case raise some suspicion as to Aerospace's motives in implementing its reduction in force. See Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir.1995) ("[A]n employer implementing a [reduction in force] may not favor younger employees over older ones by finding new positions only for younger workers."). ³

Kelleher also relies on statistical evidence to support his claim. He asserts that between 1993 and 1995, Aerospace terminated its only three nonbargaining-unit employees who were over fifty years old and only terminated one person under the age of forty. As the district court recognized, given the sample size of the statistical evidence, it is "certainly not conclusive evidence of age discrimination in itself, but it is surely the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer's explanation for this outcome." MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1058 (8th Cir.1988) (referring to an employer's decision to terminate the two oldest employees in a department in which all but one of the remaining employees were younger than forty years old). The district court determined, however, that Kelleher failed to create an inference of age discrimination because taking into consideration the employees in the collective bargaining unit, the age-related disparity "disappears." In our estimation, the nonmanagement, organized employees are irrelevant to Kelleher's claim that Aerospace has discriminated against its managerial employees over the age of fifty both because of the difference in the nature of the positions and safeguards provided to organized employees both locally and nationally. Thus, we consider the evidence as Kelleher has presented it, giving it the weight, however slight, that it is due.

We believe that the circumstances surrounding Kelleher's discharge and the fact that Aerospace fired all three management employees over the age of fifty provide sufficient additional evidence to establish a prima facie case of age discrimination. ⁴ We thus turn to the nondiscriminatory justifications Aerospace has offered for its employment decisions affecting Kelleher.

In addition to the evidence of its financial need to reduce expenses, Aerospace contends that the branch manager positions were no longer necessary after it centralized its lending services to one branch office. Kelleher does not challenge this specific reason given for his termination. Rather, he argues that the fact that Aerospace gave all of its employees a five percent raise the January following his discharge undermines the credit union's assertion that it was experiencing financial difficulties and needed to reduce its workforce at all. We are not persuaded that a wage increase for retained employees and a need to eliminate unnecessary positions are per se inconsistent. In fact, the evidence indicates that a raise for union employees was mandatory under the terms of Aerospace's collective bargaining agreement with the employee union and that management had already undergone a two and one-half year wage freeze.

With respect to the fact that the younger, former branch managers were given new assignments in the credit union, Aerospace has provided specific explanations as to why the retained employees were better suited for the new positions than Kelleher. ⁵ Kelleher contends that he was equally qualified for the positions. Even if we were to agree with Kelleher's own assessment of their relative qualifications, a comparison that reveals that...