Weber v. American Exp. Co., 92-2014

• Decision Date: 17 August 1993
• Docket Number: No. 92-2014,92-2014
• Citation: 994 F.2d 513
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 1607, 61 Empl. Prac. Dec. P 42,278 Joseph R. WEBER, Appellant, v. AMERICAN EXPRESS CO.; Systems Associates, Inc., d/b/a Sai-Systems Associates, Inc., d/b/a American Express Information Services Company, Health Systems Group, d/b/a The Health Systems Group, d/b/a American Express Health Systems, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 513

994 F.2d 513

61 Fair Empl.Prac.Cas. (BNA) 1607,

61 Empl. Prac. Dec. P 42,278

Joseph R. WEBER, Appellant, v. AMERICAN EXPRESS CO.; Systems Associates, Inc., d/b/a Sai-Systems Associates, Inc., d/b/a American Express Information Services Company, Health Systems Group, d/b/a The Health Systems Group, d/b/a American Express Health Systems, Appellees.

No. 92-2014.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 18, 1992.

Decided June 2, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 17, 1993.

Mary Anne Sedey, St. Louis, MO, argued, for appellant.

Clifford A. Godiner, St. Louis, MO, argued (Richard E. Jaudes, on the brief), for appellees.

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

FAGG, Circuit Judge.

Joseph R. Weber brought this employment discrimination action alleging Systems Associates, Inc. (SAI), a subsidiary of American Express, failed to hire him in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1988), and the Missouri Human Rights Act (MHRA), Mo.Ann.Stat. ch. 213 (Vernon 1983). Weber appeals the district court's order granting summary judgment to SAI. We affirm.

In 1986, McDonnell Douglas hired Weber to work in its Health Systems Company (Health Systems), a subsidiary that sold data processing systems to hospitals. Weber worked at various middle-management marketing positions. After suffering a heart attack in August 1988, Weber was assigned duties of providing professional services to clients. In early 1989, McDonnell Douglas informed its employees that American Express was going to buy Health Systems and merge it with SAI, which also supplied computer software to hospitals. SAI selected the Health Systems vice presidents it wished to head each new department in the merged company and chose the total number of employees for each department. SAI instructed the vice presidents to decide which employees to retain. Lawrence Covington, Weber's superior at Health Systems, was selected to head SAI's marketing and planning department.

During the reorganization, SAI decided not to continue professional client services, Weber's field of expertise, and eliminated his Health Systems' position in the merged company. SAI offered Joseph Scherer, who worked in a consultant relations position with Health Systems, a similar position in the merged company. After Scherer turned down the offer, Covington recommended Weber for the consultant relations position in SAI's new marketing and planning department because of Weber's experience in client services. Before the hiring was completed, however, Covington decided not to become employed with SAI. Rather than choosing another vice president to head Covington's department, SAI decided to eliminate the department. In dividing the department's functions among several other departments, SAI did not hire anyone to fill Scherer's consultant relations position and there is no indication Scherer's duties were assigned to employees in the other departments. Although SAI's personnel officer tried to find Weber another position, no suitable opening was found. SAI did not interview or hire Weber. When Health Systems closed in March 1989, McDonnell Douglas discharged Weber.

One month after the merger, SAI temporarily assigned consultant relations duties to Morris Berger. Berger had been the product marketing manager for pricing and packaging at Health Systems and continued in this position with SAI after the merger. Berger performed consultant relations for four to six weeks then returned to his product marketing position. After Berger's temporary assignment, no one performed consultant relations at SAI until two years after the merger, when SAI assigned consultant relations duties to a senior vice president. At this time the duties of the position were expanded to include building good relationships with SAI's national clients.

Weber, who was 51 years old and suffering from heart disease when the companies merged, contends a consultant relations position at SAI existed after the merger. Weber alleged SAI failed to hire him for the consultant relations job because of his age in violation of the ADEA and because of his age and disability in violation of the MHRA. The district court concluded Weber failed to establish a prima facie case of employment discrimination and granted SAI's motion for summary judgment.

In reviewing a grant of summary judgment, we affirm only if the record, when viewed in the light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable factual inferences, shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991); see Fed.R.Civ.P. 56(c). Although summary judgment should seldom be granted in employment discrimination cases, Johnson, 931 F.2d at 1244, if the plaintiff fails to establish a factual dispute on each element of the prima facie case, summary judgment is appropriate, see Celotex Corp v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986); Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1500 (8th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988).

To establish a prima facie case of discrimination in failing to hire under both the ADEA and the MHRA, Weber must show: (1) he was a member of the protected group; (2) he applied and was qualified for an available job; (3) he was rejected despite his qualifications; and (4) the position remained open and the employer continued to seek applicants with similar qualifications. Weber v. Block, 784 F.2d 313, 315 n. 4 (8th Cir.1986); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); see Midstate Oil Co. v. Missouri Comm'n on Human Rights, 679 S.W.2d 842, 845-46 (Mo.1984) (en banc) (adopting McDonnell Douglas test in Missouri employment discrimination case). We agree with the district court that Weber failed to establish a prima facie case.

Weber has not generated a factual dispute on an essential element of his prima facie case: the availability of a full-time consultant relations position in the merged company. See Rush v. McDonald's Corp., 966 F.2d 1104, 1118 (7th Cir.1992) (absence of available position is fatal to establishing prima facie case...