Miller v. Citizens Sec. Group, Inc.

• Decision Date: 24 June 1997
• Docket Number: No. 96-2160,96-2160
• Citation: 116 F.3d 343
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 667, 71 Empl. Prac. Dec. P 44,810 Robert L. MILLER, Plaintiff--Appellant, v. CITIZENS SECURITY GROUP, INC.; Citizens Fund Insurance Company; Insurance Company of Ohio; Citizens Security Mutual Insurance Company; Scott Broughton, and other unknowns; Spencer Broughton, Defendants--Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 343

116 F.3d 343

75 Fair Empl.Prac.Cas. (BNA) 667,

71 Empl. Prac. Dec. P 44,810

Robert L. MILLER, Plaintiff--Appellant, v. CITIZENS SECURITY GROUP, INC.; Citizens Fund Insurance Company; Insurance Company of Ohio; Citizens Security Mutual Insurance Company; Scott Broughton, and other unknowns; Spencer Broughton, Defendants--Appellees.

No. 96-2160.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 9, 1996.

Decided June 24, 1997.

Duane E. Arndt, Minneapolis, MN, argued, for plaintiff-appellant.

Elizabeth S. Wright, Minneapolis, MN, argued (Roy A. Ginsburg, on the brief), for defendants-appellees.

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

JOHN R. GIBSON, Circuit Judge.

Robert L. Miller appeals from the district court's ¹ grant of summary judgment in favor of Citizens Security Mutual Insurance Company on his age discrimination and wrongful discharge claims. ² Miller argues that the district court erred in granting summary judgment because there was evidence establishing genuine issues of material fact. We affirm.

Ray Cronk, Citizens' vice-president of claims, hired Miller as an outside insurance claims adjustor for Citizens, and Miller began working on July 10, 1989. Cronk also hired another outside adjustor, Bruce Langseth, who is significantly younger than Miller and began working for Citizens shortly after Miller.

Citizens employed outside adjustors and inside adjustors to handle customer claims for payment on losses insured by Citizens. Citizens initially assigned a claim to an inside adjustor. The inside adjustor would do all the work on a claim that could be done from inside Citizens' home office. If a claim required work that could not be performed from inside the home office, the inside adjustor would contact an outside adjustor. The outside adjustor would perform whatever work outside of the home office that was necessary to resolve the claim. Cronk supervised Citizens' inside and outside adjustors.

At first, Citizens failed to give Miller 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 every claim he handled. First, Citizens expected Miller to contact the claimant within twenty-four hours after he received a claim from an inside adjustor. Second, Citizens expected Miller to give the inside adjustor a report on every claim that was not fully resolved within ten days after it was given to him. After this January 1990 meeting, Miller understood these two requirements and knew that Citizens expected him to meet these requirements on every claim he handled.

Miller, however, failed to comply with Citizens' contact and report requirements on some of the claims he handled after January 1990. Several inside adjustors complained to Cronk about Miller'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 when Cronk fired him. ³

Like Miller, Langseth also failed to comply with Citizens' contact and report requirements on some of the claims he handled. Cronk did not fire Langseth.

During Miller's employment with Citizens, Citizens gave him an employee handbook. The handbook states on its first page that it "is not all inclusive, nor is it intended to be a contract."

Miller filed suit against Citizens claiming that Citizens violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994), by firing him because of his age. He also claimed that Citizens' employee handbook created a contract under which Citizens could only fire him for cause and that Citizens 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 prima facie case of age discrimination because there was no evidence that Miller's job performance met Citizens' legitimate expectations. The court further held that the employee handbook was not a contract because it 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 and the absence of a contract to fire Miller only for cause, the district court granted summary judgment in favor of Citizens. Miller appeals.

I.

Miller argues that the district court should not have granted summary judgment on his age discrimination claim because he established a prima facie case of age discrimination.

We review the district court's grant of summary judgment de novo and apply the same standards as the district court. See Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1102 (8th Cir.1996). Summary judgment is 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 Miller the benefit of all reasonable inferences. See Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993). Miller can establish a genuine issue of material fact by presenting evidence that would permit a reasonable jury to return a verdict for him on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

Miller relies on the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework to prove his claim of age discrimination. The only element of Miller's prima facie case of age discrimination in dispute is the second, which the district court 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, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S 308, ----, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996).

A.

Miller argues that he was qualified for the position of outside adjuster. He first contends that the district court made an erroneous articulation of the qualification element of the prima facie case when it required him to show that he was "performing his job at a level which met [Citizens'] legitimate expectations." He cites Davenport v. Riverview Gardens School District, 30 F.3d 940 (8th Cir.1994), and Hase v. Missouri Division of Employment Security, 972 F.2d 893 (8th Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993), which simply expressed the element as a showing that the employee was "qualified for his position."

The district court did not err in articulating this element as performance of the job at a level that met the employer's legitimate expectations. McDonnell Douglas makes plain that the facts in Title VII cases will vary, and that the prima facie proof required is "not necessarily applicable in every respect to differing factual situations." 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In Halsell the plaintiff brought an ADEA claim based on his discharge, and we held, relying on Loeb v. Textron, Inc., 600 F.2d 1003, 1013-14 (1st Cir.1979), another age discrimination case arising from a discharge, that a correct statement of the McDonnell Douglas prima facie elements adapted to those circumstances was that the employee "was performing his job at a level that met his employer's legitimate expectations." Halsell, 683 F.2d at 290. We have reiterated this standard 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 plaintiff has failed to present a prima facie case, which was the holding of the district court in this case. See Lang v. Star Herald, 107 F.3d 1308, 1312-13 (8th Cir.1997); Harlston, 37 F.3d at 383. Miller argues that he presented sufficient evidence to establish the second element of his prima facie case.

None of Miller's evidence creates a genuine issue of material fact as to whether he was meeting the legitimate expectations of Citizens when Citizens fired him. Miller stated in his affidavit that his job 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 performing satisfactorily in his job. These evaluations date from April 18, 1990, July 26, 1990, and January 16, 1991. We conclude that these evaluations are not evidence that Miller was meeting Citizens' legitimate expectations when Citizens fired him because they are too far removed in time from the date of Miller's discharge, March 31, 1992. Miller has not presented any evidence that he was meeting Citizens' legitimate expectations at any time during the year before he was fired.

Miller states that Citizens only told him once that his job performance was unsatisfactory. Miller argues that this is evidence that he was meeting Citizens' legitimate expectations. We reject Miller's argument; the fact that Citizens only told him once that his job performance was unsatisfactory is not evidence that his job performance was 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 his job performance met Citizens' legitimate expectations at...