                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 97-1459
                                  _____________

Edward Hennessey,                       *
                                        *
            Appellant,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
Good Earth Tools, Inc.,                 *
                                        *
            Appellee.                   *
                                  _____________

                                Submitted: September 10, 1997
                                    Filed: October 10, 1997
                                 _____________

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
      SHEPPARD ARNOLD, Circuit Judge.
                           _____________

BOWMAN, Circuit Judge.

       Good Earth Tools, Inc. hired Edward Hennessey when he was fifty-five years
old and fired him when he was fifty-nine. Good Earth claimed that it fired Hennessey
because of unsatisfactory work; Hennessey disagreed. He sued Good Earth for age
discrimination in violation of the federal Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. §§ 621-634 (1994 & Supp. 1 1995), and the Missouri Human
Rights Act ("MHRA"), Mo. Rev. Stat.§§ 213.010 -.137 (1994 & Supp. 1 1996). The
District Court1 granted Good Earth's motion for summary judgment, and Hennessey
now appeals.

       We review a grant of summary judgment de novo. Rothmeier v. Investment
Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). Summary judgment is appropriate
when there is no genuine issue of material fact and, accordingly, no reasonable jury
could find in favor of the nonmoving party. See Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where an age discrimination claim
rests on circumstantial evidence of discrimination, as Hennessey's does, courts apply
a three-step test to evaluate the claim.2 Rothmeier, 85 F.3d at 1332. First, the plaintiff
must present a prima facie case of discrimination. Second, if the plaintiff presents a
prima facie case, the defendant must articulate a nondiscriminatory reason for its action.
The burden then shifts back to the plaintiff to show that the offered reason is merely a
pretext and that the defendant intentionally discriminated against him. Id. at 1332,
1334; Ryther v. Kare 11, 108 F.3d 832, 836 (8th Cir.) (en banc), cert. denied, 117
S. Ct. 2510 (1997).

       We hold that even if Hennessey, contrary to the District Court's determination, did
establish a prima facie case under the ADEA and MHRA (a question we need not and
do not decide), he did not present evidence sufficient to support a finding that Good
Earth's declared reason for firing him was a pretext for age discrimination. Good



      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
      2
        The same test applies under both the ADEA and the MHRA. The two statutes
have functionally identical language. See 29 U.S.C. § 623(a)(1); Mo. Rev. Stat.
§ 213.055-1(1)(a). Federal decisions, moreover, are applicable to employment
discrimination cases under the MHRA. See Midstate Oil Co. v. Missouri Comm'n on
Human Rights, 679 S.W.2d 842, 845-46 (Mo. banc 1984); Cook v. Atoma Int'l of Am.,
Inc., 930 S.W.2d 43, 45-46 (Mo. Ct. App. 1996).

                                           -2-
Earth claims that it fired Hennessey for his inadequate job performance. Hennessey
claims that he was fired not for subpar work but for several other reasons, including his
age. Hennessey has produced, however, no evidence of age discrimination whatsoever.
Indeed, Hennessey acknowledges that he was fired largely for reasons other than his age.
His brief states that "he was overpaid and doing an unnecessary job." Brief for
Appellant at 13. Even if Hennessey could prove that this was true, and that he therefore
was not fired for poor work as Good Earth claims, this would not help his case.
Employers do not violate the law by discriminating against overpaid, unnecessary
employees. To survive a motion for summary judgment, Hennessey must raise a genuine
issue of material fact as to whether Good Earth's claimed reason for firing him was a
pretext for age discrimination, not for some other, legitimate motive. See Rothmeier, 85
F.3d at 1334. This he has not done. Moreover, Good Earth's hiring of Hennessey at age
fifty-five, when he was well within the age group protected by the ADEA, suggests that
Good Earth was not influenced by ageism in firing him four years later. See Lowe v.
J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) ("It is simply incredible, in
light of the weakness of plaintiff's evidence otherwise, that the company officials who
hired him at age fifty-one had suddenly developed an aversion to older people less than
two years later."). Having reviewed the record, we conclude that Hennessey did not
create a genuine question of fact as to whether age discrimination motivated his
dismissal.

      We affirm the summary judgment for Good Earth Tools.

      A true copy.

             Attest:

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




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