                                Raymond MITCHELL, Plaintiff-Appellant,

                                                    v.

                                  USBI COMPANY, Defendant-Appellee.

                                               No. 98-6690.

                                      United States Court of Appeals,

                                             Eleventh Circuit.

                                              Sept. 1, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV 97-H-1134-NE),
James H. Hancock, Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.

        PER CURIAM:

        Plaintiff Raymond Mitchell appeals the district court's grant of summary judgment in favor of

defendant USBI on his claim that USBI terminated his employment because of his age in violation of the Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Mitchell contends that he stated a

prima facie case of age discrimination and that he presented sufficient evidence for a reasonable jury to

conclude that USBI's proffered reasons for terminating his employment were pretextual. For the reasons set

forth below, we affirm the district court.

                                I. FACTS AND PROCEDURAL HISTORY

        On July 21, 1981, Mitchell began working for USBI at its Huntsville, Alabama, facility. In 1985,

Mitchell transferred to the Engineering Department, where he was classified as a "Senior Systems Engineer."

His duties, which included updating certain documents, required some technical knowledge.

        In 1991 and 1992, USBI laid off a total of 250 employees from its Huntsville workforce. In October

1993, USBI informed Don Reed, the head of the Engineering Department and the Vice President for

Engineering, that he would have to eliminate 46 or 47 positions from the Engineering Department, because



    *
     Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
NASA had canceled a USBI program known as the "ASRB program." Because many Huntsville employees

worked on ASRB projects on a part-time basis, the total number of Engineering Department layoffs

represented a compilation of all employee hours spent on ASRB projects. USBI's written layoff policy

mandated that employees who worked on the ASRB program be laid off first.

        Reed told his subordinates to prepare a department-wide list of potential layoff prospects. After

compiling this list, the Engineering Department managers worked with the Human Resources Department

to determine whether any of the layoff prospects were entitled to "bump" other employees. Under USBI's

layoff policy, a more senior employee slated for layoff could bump a less senior employee in the same job

classification or job family, if the more senior employee possessed the requisite qualifications to perform the

less senior employee's job. The Engineering Department managers prepared a written justification for each

decision to retain a less senior employee.

        Mitchell's supervisor, Lou Trivett, submitted a list of nine or ten candidates for layoff to his boss, Phil

Taylor. Mitchell was one of the layoff prospects, because Trivett and his two section chiefs determined that

Mitchell's job functions would either be eliminated by the loss of the ASRB program or could be absorbed

by other employees. USBI then determined that Mitchell did not possess the requisite qualifications to bump

any of the 20 less senior employees who worked in his job classification or job family. Mitchell contends

that he was qualified to fill at least some of those positions.

        There is some dispute as to whether Mitchell's performance evaluations played a role in the bumping

process. Ed Liverett, Mitchell's former supervisor, admits that he gave Mitchell lower performance

evaluations in 1989, 1990, and 1991, because of Mitchell's age. Liverett explained that he gave higher

performance evaluations to younger employees in order to increase their salaries and encourage them to

remain with USBI. Liverett did not prepare Mitchell's 1992 performance evaluation, however, which was the

last evaluation before the 1993 reduction-in-force. Although USBI eventually decided not to use the

performance evaluations in assessing whether less senior employees should be "bumped," four of the



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justifications relating to Mitchell did mention some of his performance evaluations without identifying their

dates.

         On November 5, 1993, Mitchell and the other employees on the final list were informed of their

terminations. At the time of his termination, Mitchell was 57 years old. After pursuing all three steps of the

employee appeals process without success, Mitchell filed an EEOC charge alleging age discrimination. He

then sued USBI, and the district court granted summary judgment against him.

                                       II. STANDARD OF REVIEW

         We review a grant of summary judgment de novo, applying the same standard as the district court.

See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1326 (1998), reh'g and reh'g en banc denied, 172

F.3d 884 (11th Cir.1999). Summary judgment is appropriate where, after viewing the evidence in the light

most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See id.

                                             III. DISCUSSION

         In order to state a prima facie case of age discrimination involving a reduction-in-force, a plaintiff

must demonstrate that: (1) he was a member of the age group protected by the ADEA and was adversely

affected by an employment decision; (2) he was qualified for his current position or to assume another

position at the time of discharge; and (3) there is evidence from which a reasonable factfinder could conclude

that the employer intended to discriminate on the basis of age in making its employment decision. See

Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir.1997). If the plaintiff satisfies this burden, the

employer then must offer a legitimate, non-discriminatory reason for the employment action. See Maddow

v. Procter & Gamble Co., Inc., 107 F.3d 846, 851 (11th Cir.1997). If the employer does so, the plaintiff bears

the ultimate burden of demonstrating that the employer's proffered reasons are a pretext for discrimination.

See id.; Watkins v. Sverdrup, 153 F.3d 1308, 1314 (11th Cir.1998).

         The district court assumed that Mitchell had presented a prima facie case of age discrimination, but



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ruled that he had failed to offer any evidence that USBI's legitimate, non-discriminatory reasons for its

employment decision were pretextual. The court found that USBI had engaged in a detailed process of

identifying candidates for layoff and explained why Mitchell could not replace 20 less senior employees, with

each written justification citing his lack of specific qualifications. On appeal, Mitchell contends that the

district court erred because he offered sufficient evidence for a reasonable factfinder to conclude that USBI's

proffered reasons were pretextual. We address each of Mitchell's arguments in turn.

        First, Mitchell argues that USBI's proffered reason for not allowing him to bump less senior

employees—that he was not qualified for any of their positions—was pretextual, because several witnesses

opined that he was qualified. None of these witnesses, however, were actual decision makers in the layoff

process. Four were co-workers of Mitchell, and one was a former supervisor who stated only that Mitchell

could have become qualified with proper training. This Court repeatedly has stated that it will not

second-guess a company's legitimate assessment of whether an employee is qualified for a particular position.

See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir.1991) (noting that "[f]ederal courts do

not sit as a super-personnel department that reexamines an entity's business decisions" and that the key

inquiry is "whether the employer gave an honest explanation of its behavior") (citations and internal

quotations omitted); Smith v. Horner, 839 F.2d 1530, 1538 (11th Cir.1988) ("If an employer selects the

person it believes is best qualified, an argument of pretext ordinarily will fail.") (citations and internal

quotations omitted).

        Second, Mitchell argues that comments by various USBI employees demonstrate a corporate culture

conducive to age discrimination. He cites a number of comments by a manager named Frank Batty, although

he admits that Batty did not participate in the decision to terminate his employment. He also cites another

manager's suggestion that the layoffs were aimed at the employees who were more secure and did not have

young children in school, although he concedes that this manager also was not a decisionmaker.

Nevertheless, Mitchell argues that, taken together, these comments constitute circumstantial evidence of



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discrimination. In several age discrimination cases, however, this court has explained that comments by

non-decisionmakers do not raise an inference of discrimination, especially if those comments are ambiguous.

See Standard, 161 F.3d at 1329-30 (statement by non-decisionmaker that "older people have more go wrong"

was not probative of discriminatory intent); Mauter v. Hardy Corp., 825 F.2d 1554, 1558 (11th Cir.1987)

(statement by non-decisionmaker that "[t]he Hardy Corporation was going to weed out the old ones" did not

raise a genuine issue of material fact regarding discriminatory intent); Barnes v. Southwest Forest Industries,

Inc., 814 F.2d 607, 610-11 (11th Cir.1987) (statement by decisionmaker that employee could not pass a

physical examination "at [his] age," when weighed against other evidence, did not raise issue of

discriminatory intent).

        Third, Mitchell argues that the district court erred in concluding that his performance evaluations did

not play a role in the bumping process. Mitchell's former supervisor has admitted that he gave Mitchell lower

performance evaluations for 1989, 1990, and 1991, because of Mitchell's age. Several of the written

justifications refer to Mitchell's performance evaluations, although they do not specify the dates.

Emphasizing the lack of specific dates and the testimony of Reed and others that they did not use the

performance evaluations in the bumping process, the district court concluded that the tainted performance

evaluations did not play a role in the bumping process. Viewing the evidence in the light most favorable to

Mitchell, however, we must assume that some of the decisionmakers examined the tainted evaluations.

        Nevertheless, we affirm the district court because the written justifications indicate that Mitchell

lacked specific, objective qualifications for each potential replacement position. Mitchell does not argue that

he possessed these qualifications, and therefore he has failed to raise a genuine issue as to whether USBI's

proffered reason for not allowing him to bump less senior employees—his lack of qualifications—was

pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407

(1993) ("[A] reason cannot be proved to be 'a pretext for discrimination ' unless it is shown both that the

reason was false, and that discrimination was the real reason."); Clark v. Coats & Clark, Inc., 990 F.2d 1217,



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1228 (11th Cir.1993) ("The burden of proving pretext merges with the plaintiff's ultimate burden of proving

that age was a determining factor in his discharge.").

         Fourth, Mitchell argues that USBI failed to follow its stated policy of first laying off employees who

worked on the ASRB program. Even assuming that USBI did deviate from its policy, this deviation does not

raise an inference of discrimination. Standing alone, deviation from a company policy does not demonstrate

discriminatory animus. See EEOC v. Texas Instruments Inc., 100 F.3d 1173, 1182 (5th Cir.1996) (deviation

from company policy not evidence of discrimination, absent a nexus between deviation and employee's

protected status); Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir.1987) (inaccurate application of

departmental policy not enough to prove discrimination). See also Berg v. Florida Dep't of Labor and

Employment Security, 163 F.3d 1251, 1255 (11th Cir.1998) (plaintiff failed to support claim of ADA

violation by arguing that state agency had failed to apply its policies correctly, absent showing that policies

were misapplied because of his disability).

        Finally, Mitchell argues that the district court relied too heavily on statistical evidence indicating that

the reduction-in-force did not have a disparate impact on older employees. While statistical evidence does

play a larger role in disparate impact cases, this court has examined such evidence in disparate treatment cases

as well. See Watkins, 153 F.3d at 1314-15; Maddow, 107 F.3d at 852. Moreover, the district court also

relied upon affidavits and other evidence relating to Mitchell's specific situation.

        Thus, we conclude that Mitchell has failed to present sufficient evidence to rebut USBI's legitimate,

non-discriminatory reasons for laying him off and not allowing him to bump any less senior employees.

Accordingly, we affirm the district court's grant of summary judgment in favor of USBI.

        AFFIRMED.




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