Mayer v. Nextel West Corp.

• Decision Date: 06 February 2003
• Docket Number: No. 02-1099.,02-1099.
• Citation: 318 F.3d 803
• Parties: Gary MAYER, Appellant, v. NEXTEL WEST CORPORATION, a Delaware corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

318 F.3d 803

Gary MAYER, Appellant, v. NEXTEL WEST CORPORATION, a Delaware corporation, Appellee.

No. 02-1099.

United States Court of Appeals, Eighth Circuit.

Submitted: October 10, 2002.

Filed: February 6, 2003.

Rehearing and Rehearing En Banc Denied: March 14, 2003.

George E. Antrim, III, argued, Minneapolis, MN, for appellant.

Scott S. Payzant, argued, Minneapolis, MN, for appellee.

Before RILEY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

Gary Mayer (Mayer) sued Nextel West Corporation (Nextel) for violating the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (2000), after Nextel terminated his employment. The district court¹ granted summary judgment to Nextel. Mayer appeals. Because the evidence does not create a reasonable inference that age was a determinative factor in Mayer's termination, we affirm.

I. BACKGROUND

In January 1997, Robert Wahner (Wahner), Nextel's 58 year-old general manager, hired Mayer, who was 57. Two months later, Nextel promoted Mayer to major account sales manager. On March 18, 1997, Wahner gave Mayer his first performance evaluation, which included twelve assessment areas.² An employee's rating for Level of Achievement in each area could be Development Required, Competent or Role Model. Wahner rated Mayer Competent in all areas.

In July 1997, Phil Callahan (Callahan), age 34, replaced Wahner as general manager. On January 15, 1998, Callahan gave Mayer his second performance evaluation. Of the twelve areas, Callahan rated Mayer Competent in ten, but gave him a Development Required rating in Work Results and Selection. Under Work Results, Callahan wrote Mayer's "[o]verall work results i.e. meeting quota and driving performance needs to improve. Needs to take more of a hands on approach and demand excellence." Under Selection, Callahan said, "Although [Mayer] has made timely hires, I would like to see Gary focus on the `Right' person, not the task at hand — to fill headcount slots." Callahan, in his deposition, testified his criteria for the "right" person "would be probably two to six years sales experience, somebody that can manage high activity, that has been in a high activity business, someone that is intelligent, articulate, has sales experience, can overcome objections." Although Callahan rated Mayer Competent for Job Knowledge/Know-How, Callahan wrote he "would like to see Gary improve his product knowledge." Under Decision Making, Callahan wrote "Gary makes timely decisions, however, I would like to see Gary collect additional data before making those decisions."

On January 27, 1999, Callahan gave Mayer his third annual performance evaluation. The evaluation now contained thirty-six review areas, instead of twelve, and, contained five, not three, Performance Levels: (1) Below Requirements; (2) Requires Improvement; (3) Meets Requirements; (4) Very Good; and (5) Exceeds Requirements. Mayer received an overall Meets Requirements rating. Specifically, Mayer received a Meets Requirements rating in thirty review areas, a Very Good rating in three areas, and a Requires Improvement in three areas. The three Requires Improvement areas were Initiative (Work Habits section), Listening (Communication Skills section) and Selection (Leadership section). Under Training and Development, Callahan instructed Mayer to improve his product knowledge. Under Activity Management, Callahan instructed Mayer to "Hold team accountable for their time and activities." Callahan also instructed Mayer to "Spend more time in the management role vs coaching role."

In August 1999, Callahan gave Mayer a mid-year evaluation, informing Mayer that "Quota is considered minimum performance." The evaluation also included a corrective action plan addressing two of the three areas in which Mayer received a Requires Improvement rating on his January 1999 performance evaluation.³ Callahan told Mayer he had improved in the Work Habits/Initiative area, but had shown no improvement in the Listening area. Callahan wrote that Mayer "needed to continue to focus on activity management, performance improvement skills and holding [account executives] accountable to their forecast." Finally, Callahan told Mayer to "consistently exceed your quotas while learning the parts of the business, spend 3½ days in service and repair."

On September 30, 1999, Callahan fired Mayer, who was then 60 years old. Mayer claims he was never warned he was facing dismissal, and, after Callahan told him he was terminated, had "repeatedly asked Mr. Callahan to give me a reason for my termination but he refused to provide any." On October 11, 1999, Nextel wrote Mayer a letter informing him he had been terminated for "1) Poor Business Judgment, 2) Poor Business Knowledge and 3) Poor Sales Management Skills." Mayer claims Nextel had "a disciplinary instrument called a Personal Improvement Plan [PIP]⁴ for its employees whose performance is not acceptable." Mayer alleges two sales managers, ages 39 and 35, who also reported to Callahan, were placed on PIPs while he was not.

Mayer sued Nextel for age discrimination. Nextel moved for summary judgment, which the district court granted, holding the evidence does not create a reasonable inference that age was a determinative factor in Nextel's termination decision. Mayer appeals.

II. DISCUSSION

The district court's grant of summary judgment to Nextel must be reviewed de novo. Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir.1999). Summary judgment for Nextel is proper if the evidence, viewed in the light most favorable to Mayer and giving Mayer the benefit of all reasonable inferences, shows there are no genuine issues of material fact and Nextel is entitled to judgment as a matter of law. See id.; Fed.R.Civ.P. 56(c). We remain mindful "that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact based." Keathley, 187 F.3d at 919.

The ADEA prohibits an employer from terminating an employee because of the employee's age. 29 U.S.C. § 623(a)(1). Because Mayer presented no direct evidence of intentional age discrimination, but rather based his claim solely on circumstantial evidence, we apply the well-known McDonnell Douglas analytical framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 728-29 (8th Cir.2002). Under this three-part burden shifting framework, Mayer must establish a prima facie case of age discrimination by showing he (1) was at least 40 years old, (2) was terminated, (3) was meeting Nextel's reasonable expectations at the time of his termination, and (4) was replaced by someone substantially younger. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 988 (8th Cir. 1996). If Mayer succeeds, a rebuttable presumption of unlawful discrimination is created. Kneibert v. Thomson Newspapers, Mich., Inc., 129 F.3d 444, 451-52 (8th Cir.1997).

The district court determined Mayer had established a prima facie case of age discrimination. The only contested element below was whether Mayer was meeting Nextel's reasonable expectations at the time he was terminated. Nextel has abandoned this argument on appeal, and rightfully so. See Keathley, 187 F.3d at 920 ("The standard to be applied in assessing performance is not that of the ideal employee, but rather what the employer could legitimately expect."). Thus, we agree Mayer has established a prima facie case of age discrimination.

Nextel must then produce evidence of a legitimate, nondiscriminatory reason for terminating Mayer. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("This burden is one of production, not persuasion; it `can involve no credibility assessment.'") (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)); Kneibert, 129 F.3d at 452. If Nextel meets its burden of production, the presumption disappears, and Mayer must show Nextel's reason for termination is a pretext for intentional age discrimination. Kneibert, 129 F.3d at 452. The district court determined Nextel met its production burden. We agree Nextel produced numerous legitimate, nondiscriminatory reasons for terminating Mayer. In addition to the three reasons cited in its October 1999 letter (poor business judgment, poor business knowledge, poor sales management skills), Nextel offered other reasons for the termination, including Mayer's sales team did not meet its potential, Mayer did not take forecasting seriously, and Mayer had two problems with major customers in September 1999.

Because Nextel met its production burden, the presumption of discrimination disappears and Mayer "can avoid summary judgment only if the evidence considered in its entirety (1) creates a fact issue as to whether the employer's proffered reasons are pretextual and (2) creates a reasonable inference that age was a determinative factor in the adverse employment decision." Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir.1996) (emphasis added). The "sole remaining issue [is] discrimination vel non." Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (internal quotation omitted). Even though the burden of production shifted to Nextel at the second stage of the McDonnell Douglas framework, the ultimate burden of persuading the factfinder of intentional age discrimination rests with Mayer at all times. Id.; Rothmeier, 85 F.3d at 1332 (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

Mayer argues summary judgment is inappropriate because he established a prima facie case and presented evidence that Nextel's proffered reasons for termination are pretextual. Although the district court recognized "Nextel's proffered reasons for terminating Mayer may be pretextual," the court...