                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1099
                                  ___________

Gary Mayer,                            *
                                       *
              Appellant,               *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Nextel West Corporation, a             *
Delaware corporation,                  *
                                       *
              Appellee.                *
                                  ___________

                             Submitted: October 10, 2002

                                 Filed: February 6, 2003
                                  ___________

Before RILEY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Gary Mayer (Mayer) sued Nextel West Corporation (Nextel) for violating the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (2000), after
Nextel terminated his employment. The district court1 granted summary judgment to
Nextel. Mayer appeals. Because the evidence does not create a reasonable inference
that age was a determinative factor in Mayer’s termination, we affirm.


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
I.     BACKGROUND
       In January 1997, Robert Wahner (Wahner), Nextel’s 58 year-old general
manager, hired Mayer, who was 57. Two months later, Nextel promoted Mayer to
major account sales manager. On March 18, 1997, Wahner gave Mayer his first
performance evaluation, which included twelve assessment areas.2 An employee’s
rating for Level of Achievement in each area could be Development Required,
Competent or Role Model. Wahner rated Mayer Competent in all areas.

       In July 1997, Phil Callahan (Callahan), age 34, replaced Wahner as general
manager. On January 15, 1998, Callahan gave Mayer his second performance
evaluation. Of the twelve areas, Callahan rated Mayer Competent in ten, but gave
him a Development Required rating in Work Results and Selection. Under Work
Results, Callahan wrote Mayer’s “[o]verall work results i.e. meeting quota and
driving performance needs to improve. Needs to take more of a hands on approach
and demand excellence.” Under Selection, Callahan said, “Although [Mayer] has
made timely hires, I would like to see Gary focus on the ‘Right’ person, not the task
at hand – to fill headcount slots.” Callahan, in his deposition, testified his criteria for
the “right” person “would be probably two to six years sales experience, somebody
that can manage high activity, that has been in a high activity business, someone that
is intelligent, articulate, has sales experience, can overcome objections.” Although
Callahan rated Mayer Competent for Job Knowledge/Know-How, Callahan wrote he
“would like to see Gary improve his product knowledge.” Under Decision Making,
Callahan wrote “Gary makes timely decisions, however, I would like to see Gary
collect additional data before making those decisions.”




      2
      The evaluation rated Mayer in the following twelve areas: Work Habits;
Customer Focus; Communication Skills; Teamwork; Job Knowledge/Know-How;
Work Results; Diversity; Selection; Associate Development; Appraisal/Feedback;
Work Environment; and Decision Making.

                                           -2-
       On January 27, 1999, Callahan gave Mayer his third annual performance
evaluation. The evaluation now contained thirty-six review areas, instead of twelve,
and, contained five, not three, Performance Levels: (1) Below Requirements; (2)
Requires Improvement; (3) Meets Requirements; (4) Very Good; and (5) Exceeds
Requirements. Mayer received an overall Meets Requirements rating. Specifically,
Mayer received a Meets Requirements rating in thirty review areas, a Very Good
rating in three areas, and a Requires Improvement in three areas. The three Requires
Improvement areas were Initiative (Work Habits section), Listening (Communication
Skills section) and Selection (Leadership section). Under Training and Development,
Callahan instructed Mayer to improve his product knowledge. Under Activity
Management, Callahan instructed Mayer to “Hold team accountable for their time and
activities.” Callahan also instructed Mayer to “Spend more time in the management
role vs coaching role.”

      In August 1999, Callahan gave Mayer a mid-year evaluation, informing Mayer
that “Quota is considered minimum performance.” The evaluation also included a
corrective action plan addressing two of the three areas in which Mayer received a
Requires Improvement rating on his January 1999 performance evaluation.3 Callahan
told Mayer he had improved in the Work Habits/Initiative area, but had shown no
improvement in the Listening area. Callahan wrote that Mayer “needed to continue
to focus on activity management, performance improvement skills and holding
[account executives] accountable to their forecast.” Finally, Callahan told Mayer to
“consistently exceed your quotas while learning the parts of the business, spend 3 1/2
days in service and repair.”




      3
       Even though the mid-year evaluation had a page entitled “Corrective Action
Plan,” Mayer claims there “is no such instrument that is called a Corrective Action
Plan.”

                                         -3-
      On September 30, 1999, Callahan fired Mayer, who was then 60 years old.
Mayer claims he was never warned he was facing dismissal, and, after Callahan told
him he was terminated, had “repeatedly asked Mr. Callahan to give me a reason for
my termination but he refused to provide any.” On October 11, 1999, Nextel wrote
Mayer a letter informing him he had been terminated for “1) Poor Business Judgment,
2) Poor Business Knowledge and 3) Poor Sales Management Skills.” Mayer claims
Nextel had “a disciplinary instrument called a Personal Improvement Plan [PIP]4 for
its employees whose performance is not acceptable.” Mayer alleges two sales
managers, ages 39 and 35, who also reported to Callahan, were placed on PIPs while
he was not.

      Mayer sued Nextel for age discrimination. Nextel moved for summary
judgment, which the district court granted, holding the evidence does not create a
reasonable inference that age was a determinative factor in Nextel’s termination
decision. Mayer appeals.

II.   DISCUSSION
      The district court’s grant of summary judgment to Nextel must be reviewed de
novo. Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir. 1999). Summary
judgment for Nextel is proper if the evidence, viewed in the light most favorable to
Mayer and giving Mayer the benefit of all reasonable inferences, shows there are no
genuine issues of material fact and Nextel is entitled to judgment as a matter of law.
See id.; Fed. R. Civ. P. 56(c). We remain mindful “that summary judgment should
seldom be granted in the context of employment actions, as such actions are
inherently fact based.” Keathley, 187 F.3d at 919.




      4
       Mayer references a Personal Improvement Plan, while Nextel refers to it as a
Performance Improvement Plan. Consistent with both references, we will refer to it
simply as a PIP.

                                         -4-
       The ADEA prohibits an employer from terminating an employee because of the
employee’s age. 29 U.S.C. § 623(a)(1). Because Mayer presented no direct evidence
of intentional age discrimination, but rather based his claim solely on circumstantial
evidence, we apply the well-known McDonnell Douglas analytical framework.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Calder v. TCI
Cablevision of Mo., Inc., 298 F.3d 723, 728-29 (8th Cir. 2002). Under this three-part
burden shifting framework, Mayer must establish a prima facie case of age
discrimination by showing he (1) was at least 40 years old, (2) was terminated, (3)
was meeting Nextel’s reasonable expectations at the time of his termination, and (4)
was replaced by someone substantially younger. See McDonnell Douglas, 411 U.S.
at 802; Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 988 (8th Cir. 1996). If Mayer
succeeds, a rebuttable presumption of unlawful discrimination is created. Kneibert
v. Thomson Newspapers, Mich., Inc., 129 F.3d 444, 451-52 (8th Cir. 1997).

      The district court determined Mayer had established a prima facie case of age
discrimination. The only contested element below was whether Mayer was meeting
Nextel’s reasonable expectations at the time he was terminated. Nextel has
abandoned this argument on appeal, and rightfully so. See Keathley, 187 F.3d at 920
(“The standard to be applied in assessing performance is not that of the ideal
employee, but rather what the employer could legitimately expect.”). Thus, we agree
Mayer has established a prima facie case of age discrimination.

       Nextel must then produce evidence of a legitimate, nondiscriminatory reason
for terminating Mayer. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (“This burden is one of production, not persuasion; it ‘can involve no
credibility assessment.’”) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993)); Kneibert, 129 F.3d at 452. If Nextel meets its burden of production, the
presumption disappears, and Mayer must show Nextel’s reason for termination is a
pretext for intentional age discrimination. Kneibert, 129 F.3d at 452. The district
court determined Nextel met its production burden. We agree Nextel produced

                                         -5-
numerous legitimate, nondiscriminatory reasons for terminating Mayer. In addition
to the three reasons cited in its October 1999 letter (poor business judgment, poor
business knowledge, poor sales management skills), Nextel offered other reasons for
the termination, including Mayer’s sales team did not meet its potential, Mayer did
not take forecasting seriously, and Mayer had two problems with major customers in
September 1999.

        Because Nextel met its production burden, the presumption of discrimination
disappears and Mayer “can avoid summary judgment only if the evidence considered
in its entirety (1) creates a fact issue as to whether the employer’s proffered reasons
are pretextual and (2) creates a reasonable inference that age was a determinative
factor in the adverse employment decision.” Rothmeier v. Inv. Advisors, Inc., 85
F.3d 1328, 1336-37 (8th Cir. 1996) (emphasis added). The “sole remaining issue [is]
discrimination vel non.” Reeves, 530 U.S. at 143 (internal quotation omitted). Even
though the burden of production shifted to Nextel at the second stage of the
McDonnell Douglas framework, the ultimate burden of persuading the factfinder of
intentional age discrimination rests with Mayer at all times. Id.; Rothmeier, 85 F.3d
at 1332 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

      Mayer argues summary judgment is inappropriate because he established a
prima facie case and presented evidence that Nextel’s proffered reasons for
termination are pretextual. Although the district court recognized “Nextel’s proffered
reasons for terminating Mayer may be pretextual,” the court nevertheless found “no
reasonable factfinder could conclude that Mayer’s termination was based on age
discrimination.”5

      5
        As evidence of pretext, Mayer points out his sales team exceeded quota and
he received favorable evaluations, proving he satisfied Nextel’s expectations. He also
contends age has not been excluded as a factor in Nextel’s termination decision.
Without so holding, we will assume Mayer has presented sufficient evidence to create
a fact issue as to whether Nextel’s reasons were pretextual.

                                         -6-
       The Supreme Court has made clear a “plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false,”
will not “always be adequate to sustain a jury’s finding of liability. Certainly there
will be instances where, although the plaintiff has established a prima facie case and
set forth sufficient evidence to reject the defendant’s explanation, no rational
factfinder could conclude that the action was discriminatory.” Reeves, 530 U.S. at
148. “It is not enough, in other words, to disbelieve the employer; the factfinder must
believe the plaintiff’s explanation of intentional discrimination.” Hicks, 509 U.S. at
519. “The ultimate question in every employment discrimination case involving a
claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.” Reeves, 530 U.S. at 153.

       Here, Mayer has established a prima facie case and, perhaps, even set forth
sufficient evidence to reject Nextel’s explanations for the termination.6 Nevertheless,
no rational factfinder could conclude Mayer’s termination was discriminatory because
no evidence creates a reasonable inference that age was the determinative factor for
Mayer’s termination.

        In Rothmeier, we confronted the Hicks issue of “whether, in a case where the
employee has established a prima facie case and has presented sufficient evidence for
a jury to disbelieve the reasons proffered by the employer, the trial court nevertheless
may decide as a matter of law that the evidence is insufficient for a reasonable jury
to infer age discrimination and therefore may grant summary judgment to the
employer.” Rothmeier, 85 F.3d at 1335. Investment Advisors, Inc. (IAI) hired


      6
        We do not believe Mayer’s pretext evidence is particularly compelling, but do
not need to reach directly the issue of whether an issue of material fact exists as to
pretext. Suffice it to say, Mayer’s evidence does not even remotely resemble the type
of evidence the Supreme Court discussed in Hicks and Reeves when declaring a
plaintiff may, in some cases, survive a summary judgment motion by establishing a
prima facie case and presenting sufficient evidence of pretext.

                                          -7-
Rothmeier when he was 43 years old and fired him three years later after he had
reported a Securities and Exchange Commission (SEC) violation to IAI’s chief
executive officer (CEO). IAI said it terminated Rothmeier for his division’s poor
performance, his unit’s failure to achieve goals, and his insubordination or differences
in management styles between him and the CEO. Rothmeier showed he had never
received an unfavorable performance review, had never been warned about
insubordination or his management style, and had received a $50,000 bonus just two
weeks before he was terminated. Rothmeier sued for age discrimination, and the
district court granted summary judgment to IAI.

       Although the district court determined Rothmeier had created factual disputes
as to pretext, the court still granted summary judgment “because the record was bereft
of any suggestion that there was any age based animus involved in the decision of IAI
and [the CEO] to terminate Rothmeier.” Id. at 1331. On appeal, we read Hicks as
allowing “a trial judge to decide on a motion for summary judgment that the evidence
is insufficient for a reasonable trier of fact to infer discrimination even though the
plaintiff may have created a factual dispute as to the issue of pretext.” Id. at 1335.
We focused “on the ultimate question of law: whether the evidence is sufficient to
create a genuine issue of fact as to whether the employer intentionally discriminated
against the plaintiff because of the plaintiff’s age.” Id. at 1337.

       We decided the problems between Rothmeier and the CEO were based on a bad
business relationship and not age. We highlighted the fact that Rothmeier was hired
and fired by the same individual within three years. We also recognized the reason
for Rothmeier’s termination clearly appeared to be the SEC investigation and not age.
Id. Finally, we believed Rothmeier attempted to create an age discrimination case “by
weaving an intricate web.” Id. Rothmeier argued IAI replaced him with a younger
employee because Rothmeier was too ethical, while a younger employee would not
stand up to any SEC cover-up. We rejected this argument because we had “no
inclination to accept the assertion that the content of one’s character is a proxy for

                                          -8-
age.” Id. at 1338. After a careful review of the record, we concluded “Rothmeier
presented neither direct evidence of age discrimination nor sufficient circumstantial
evidence for a reasonable factfinder to infer that Rothmeier’s age ‘actually motivated’
his employer’s decision to discharge him.” Id. at 1337 (citations omitted).

        As in Rothmeier, we believe Mayer has also tried to create an age
discrimination case “by weaving an intricate web.” To find an inference of
intentional age discrimination, Mayer asks us to focus on Callahan’s order to hire the
“right” people and subsequent explanation that the “right” people were those with two
to six years experience. Mayer characterizes these comments as age references. We
reject this creative argument. To decide otherwise would indict countless employers
seeking to hire employees with two to six years experience as discriminating based
on age. If Mayer had provided additional evidence of possible age-based animus,
then a court could allow the jury to determine whether the “right” people comment
was also based on age animus.

        Mayer’s argument also distorts the evidence. Callahan wrote the order to hire
the “right” people in Mayer’s performance evaluation nearly two years before Nextel
terminated Mayer. Callahan never explained to Mayer, and Mayer never asked
Callahan, if the order meant Mayer should hire only young people. Callahan’s order
to hire the “right” people should, in no way, create a reasonable inference of age
discrimination. The “two to six years experience” comment Mayer references is
taken from Callahan’s deposition, but Mayer’s quotation is incomplete. Callahan
testified his criteria for the “right” person “would be probably two to six years sales
experience, somebody that can manage high activity, that has been in a high activity
business, someone that is intelligent, articulate, has sales experience, can overcome
objections.” This statement alone cannot create a reasonable inference Callahan
meant for Mayer to hire only young people.




                                         -9-
       Mayer also asserts Callahan exhibited a pattern of discriminatory conduct
toward individuals over age forty. First, Mayer claims Callahan only hires young
people. After reading Mayer’s briefs and reviewing the record, we are unable to find
sufficient evidence to support this claim. Evidence, not contentions, avoids summary
judgment. Second, Mayer claims Nextel placed two young sales managers on PIPs,
but chose to terminate Mayer without placing him on a PIP. Nextel’s uncontroverted
explanation was only managers who failed to meet quota were placed on PIPs.
Because Mayer had met quota, he was not eligible for a PIP. Nextel can certainly
choose how to run its business, including not offering all at-will employees a PIP
before termination, as long as it does not unlawfully discriminate in doing so. We
refuse to sit as a super-personnel department who second-guesses Nextel’s business
decisions. See Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 837 (8th Cir.
2002).

       Finally, Mayer argues he was not provided any notice he might be terminated
before Nextel actually terminated him, pointing out his favorable performance ratings
and that his team exceeded quota. A review of his performance evaluations,
including his 1999 mid-year evaluation and corrective action plan, could be construed
as notice that his performance was not exemplary. Meeting quota was considered
minimal, not optimal, performance. During his tenure, Mayer’s judgment, knowledge
and management skills were consistently discussed in his evaluations.
Notwithstanding, this case does not require us to resolve whether Mayer was entitled
to actual notice before he was terminated. We are required to determine whether the
evidence, including his lack of notice allegation, creates a reasonable inference that
age was a determinative factor in Mayer’s termination. We believe it does not.

       Mayer cites numerous cases to support his contention that he presented
sufficient evidence to infer Nextel terminated him based on his age. Those cases
contain distinguishing facts, such as evidence of age-based animus that allowed
inferences of intentional age discrimination, which are not present in this case. See,

                                        -10-
e.g., Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922 (8th Cir. 2000) (“We need not
decide if Fisher’s prima facie case and the potential falsity of Pharmacia’s proffered
explanation would alone support an inference of discrimination in this case, because
Fisher has presented additional evidence supporting an inference of discrimination
. . . consist[ing] primarily of disparaging age-related remarks . . . .”); Madel v. FCI
Mktg., Inc., 116 F.3d 1247, 1252 (8th Cir. 1997) (“We are primarily concerned with
the allegedly pervasive use of age-based epithets by [the hiring official].”); Ryther v.
KARE 11, 108 F.3d 832, 844 (8th Cir. 1997) (“The plaintiff produced overwhelming
evidence as to the elements of a prima facie case, and strong evidence of pretext,
which, when considered with indications of age-based animus in [plaintiff’s] work
environment, clearly provide sufficient evidence as a matter of law to allow the trier
of fact to find intentional discrimination.”).

       Mayer continually argues “nothing in the records excludes age discrimination
as the real reason for Nextel’s actions.” This argument misses the mark. Before a
court can allow a discrimination case involving only circumstantial evidence to go
to a jury, it must find sufficient evidence that would allow a reasonable factfinder to
infer that age was a determinative factor in the adverse employment action. Mayer
must show something in the record that suggests age discrimination was a reason for
Nextel’s actions. Because he has failed to produce such evidence, summary judgment
was proper.

III.  CONCLUSION
      Because Mayer failed to produce evidence allowing a reasonable inference that
age was a determinative factor in Nextel’s termination decision, we affirm the district
court’s entry of summary judgment in Nextel’s favor.




                                         -11-
A true copy.

      Attest:

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




                          -12-
