                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1447
                                    ___________

Robert W. Doerhoff,                        *
                                           *
             Appellant,                    *
                                           *   Appeal from the United States
      v.                                   *   District Court for the Eastern
                                           *   District of Missouri.
McDonnell Douglas Corporation,             *
                                           *
             Appellee.                     *

                                    ___________

                              Submitted: December 16, 1998

                                   Filed: March 30, 1999
                                    ___________

Before BEAM, FLOYD R. GIBSON and LOKEN, Circuit Judges.
                           ___________

FLOYD R. GIBSON, Circuit Judge.

        Robert Doerhoff appeals the district court's1 grant of summary judgment in favor
of his former employer, McDonnell Douglas Corporation (MDC), on Doerhoff's claim
that MDC terminated him in violation of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634 (1994). We affirm.


      1
        The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge
for the Eastern District of Missouri.
I.    BACKGROUND

       Doerhoff began his employment with MDC in 1963 at the age of 27 as an
Inspector-Radio and Electric. During his thirty years with MDC, Doerhoff occupied
a number of positions within the company and received satisfactory performance
evaluations. In 1990, MDC promoted Doerhoff to the position of Lead Technician, a
position he would occupy until his termination in December of 1993. In December of
1992, Doerhoff was assigned to the Space Electronics Power Systems (SEPS) Program.
When the SEPS Program was substantially eliminated one year later, Doerhoff opted
for early retirement in lieu of lay-off. Doerhoff's last day of employment with MDC
was December 31, 1993.

        In 1990, as a result of adverse financial and business conditions, MDC began a
series of reductions-in-force (RIFs). The widespread lay-offs spawned a series of
employment discrimination lawsuits. In 1993, MDC entered into a Consent Decree
with the Equal Employment Opportunity Commission (EEOC) which established an
enterprise-wide RIF Management Process. The RIF Management Process is a four-
step process through which employees are selected for lay-off based upon objective
criteria. See Appellant's App. at 29-31. First, MDC arranges employees into skill
groups based upon the program, grade level, and job responsibilities of employees.
Next, the skills most critical for employees within each skill group are identified and
defined. Each skill is then ranked in importance and assigned a point value. Finally,
members of the skill group are ranked on each skill by their immediate supervisors,
creating a Relative Assessment Score (RAS) for each employee.

      At the time the SEPS Program was substantially eliminated, Doerhoff's skill
group was comprised of technical employees that were involved in testing and
development in the SEPS Program and had grade levels of 55 to 59. The skill group
consisted of ten employees: two technicians and eight engineers. Six of the
employees, including Doerhoff, were selected for lay-off in December of 1993. Of the

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six, five employees were able to secure other positions with MDC prior to their lay-off.
Doerhoff was the only employee who did not secure another position with MDC.
Doerhoff, at age fifty-seven, was the oldest, and ultimately only, employee who lost his
job due to the SEPS RIF. His RAS was the lowest in his comparable skill group.2

       After receipt of his Right to Sue letter from the EEOC, Doerhoff filed this action,
alleging that MDC violated the ADEA by forcing him to choose between early
retirement and lay off. MDC filed a motion for summary judgment on Doerhoff's claim,
which the district court granted on January 9, 1998. Doerhoff appeals.

II.   DISCUSSION

       We review a grant of summary judgment de novo and will affirm the judgment
only if, after reviewing the record in the light most favorable to the Doerhoff, as the
non-moving party, no genuine issue of material fact exists from which a reasonable
juror could find in favor of Doerhoff. See Nitschke v. McDonnell Douglas Corp., 68
F.3d 249, 251 (1995); Fed.R.Civ.P. 56(c).

       As Doerhoff is relying on circumstantial, rather than direct, evidence to prove
his claim of age discrimination, the familiar burden-shifting scheme developed by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies
to this case. Therefore, Doerhoff must first establish a prima facie case of age
discrimination. Once the prima facie case is established, a legal presumption of
unlawful discrimination is created. See St. Mary's Honor Center v. Hicks, 509 U.S.
502, 506 (1993). The burden of production then shifts to MDC to articulate a
legitimate non-discriminatory reason for Doerhoff's termination. If MDC comes
forward with a non-discriminatory explanation, the presumption of unlawful


      2
        Doerhoff's RAS was 50.9 out of a maximum 100. The other employees within
the skill group were assessed scores between 53.2 and 81.0.

                                           -3-
discrimination drops from the case. See id at 511. The burden of production then
returns to Doerhoff to rebut MDC's explanation by showing that the proffered reason
is actually a pretext for intentional discrimination. See id. at 508. The burden of proof
remains with Doerhoff at all times. See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).

       To establish a prima facie case of age discrimination in a RIF context, Doerhoff
must show: 1) that he is within the protected age group;3 2) that he met the applicable
job qualifications; 3) that he was terminated; and 4) produce some additional showing
indicating that age was a factor in his termination. See Cramer v. McDonnell Douglas
Corp., 120 F.3d 874, 876 (8th Cir. 1997). For the purposes of this appeal, we will
assume, as did the district court, that Doerhoff established his prima facie case. MDC
articulated a legitimate non-discriminatory reason for Doerhoff's termination -- the RIF
combined with Doerhoff's low RAS. Doerhoff contends that he produced sufficient
evidence to allow a reasonable trier of fact to conclude that MDC's explanation is
merely a pretext for intentional age discrimination. We disagree.

        Doerhoff offers, as his primary evidence of age discrimination, that his placement
in a skill group which included eight engineers and two technicians virtually guaranteed
that he would receive a low RAS and therefore be chosen for lay-off.4 Doerhoff claims
that he could not be expected to score as well as the engineers in his skill group and
that MDC manipulated the RIF Management Process in order to justify his termination.
If Doerhoff offered evidence that MDC's RIF Management Process was based upon a
discriminatory policy, he could sufficiently show that MDC's explanation for his


      3
       The ADEA protects individuals who are at least forty years of age. See 29
U.S.C. § 631(a) (1994).
      4
       Engineers generally possess a post-secondary degree and perform managerial
or supervisory duties whereas a technician's main duty is to provide support as directed
by an engineer. See Appellant's App. at 130, 142-43, 155-57.

                                           -4-
termination was a pretext for intentional discrimination. See Nitschke, 68 F.3d at 252
n.3. However, this Doerhoff has failed to do.

       Initially, Doerhoff argues that MDC could not legitimately group employees with
differing job titles into the same skill group. The RIF Management Process requires
the grouping of employees with similar, not identical, job responsibilities and grade
levels. Doerhoff's skill group was comprised of all those technical employees involved
in the SEPS Program with grade levels below 59. In reviewing the RASs of each
member of the skill group, it does not appear that technicians were dealt a
insurmountable blow when they were placed with engineers. Two engineers in
Doerhoff's skill group were assessed RASs of 53.2 and 54.8, only slightly higher than
Doerhoff's score of 50.9. The only other technician in the skill group received a RAS
of 63.3, higher than four of the engineers in the group. Given these facts, we will not
second-guess the wisdom of MDC's decision to place this particular group of
employees together for the purpose of assessing skills. See Hutson v. McDonnell
Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) (unless intentional discrimination is
involved, court does not review the wisdom or fairness of business judgments). We
agree with the district court that the composition of Doerhoff's skill group does not
raise any inference of age discrimination on the part of MDC.

       As further evidence of age discrimination, Doerhoff points to the fact that the
five other employees selected for lay-off upon the elimination of the SEPS Program
found other employment with MDC. Although Doerhoff did not bring a failure to
transfer claim5 against MDC, we note that this does not prevent him from attempting
to use MDC's failure to transfer him as evidence that the RIF was a pretext for age
discrimination. Nonetheless, Doerhoff has not presented any evidence from which it


      5
       A failure to transfer claim is a distinct cause of action, separate from the
wrongful termination claim which Doerhoff has brought. Cf. Kehoe v. Anheuser-
Busch, Inc., 96 F.3d 1095 (8th Cir. 1996).

                                          -5-
could reasonably be inferred that his age played a role in his failure to secure other
employment with MDC.

       Doerhoff was formally advised of the substantial elimination of the SEPS
Program and his impending lay-off on December 8, 1993. See Appellant's App. at 82.
Doerhoff admits, however, that he had been aware of rumors for several months that
at least a portion of the SEPS Program would be eliminated. See id. at 71-73. While
the other SEPS employees selected for lay-off had secured other positions6 with MDC
prior to the official announcement of the RIF, Doerhoff, apparently believing that his
position would not be eliminated, did not attempt to secure another position. Doerhoff
did not apply for any other specific position with MDC and made only minimal efforts
to effectuate a transfer.7 Within fifteen days of his formal notification of the RIF,
Doerhoff opted for early retirement in lieu of lay-off. Under these circumstances, we
do not believe that Doerhoff offered evidence giving rise to a reasonable inference of
age discrimination.

       We have considered the other evidence offered by Doerhoff as proof of age
discrimination and find it to be insufficient to withstand MDC's motion for summary
judgment. Accordingly, the district court's order is affirmed.

III.   CONCLUSION

     For the reasons set forth above, we affirm the district court's grant of summary
judgment.


       6
        Although the record is unclear on the point, apparently the five other employees
sent their resumes to other departments throughout the company while Doerhoff failed
to do so. See id. at 70.
       7
       In his deposition, Doerhoff stated that he once sent his resume to the Job Fair.
 See id. at 71.

                                          -6-
Affirmed.

A true copy.

      Attest:

            CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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