                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                              ____________

                                  No. 96-2160
                                 ____________

Robert L. Miller,                   *
                                    *
    Plaintiff - Appellant,   *
                                 *
     v.                          *
                                 *
Citizens Security Group, Inc.;* Appeal from the United States
Citizens Fund Insurance          * District Court for the
Company; Insurance Company of    * District of Minnesota.
Ohio; Citizens Security          *
Mutual Insurance Company;   *
Scott Broughton, and other       *
unknowns; Spencer Broughton,     *
                                 *
    Defendants - Appellees.      *

                                 ____________

                       Submitted: December 9, 1996

                          Filed: June 24, 1997
                               ____________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

                                 ____________

JOHN R. GIBSON, Circuit Judge.

     Robert L. Miller appeals from the district court’s1 grant of summary
judgment in favor of Citizens Security Mutual Insurance Company on his age
discrimination and wrongful discharge claims.2




     1
      The Honorable Michael J. Davis, United States District Judge
for the District of Minnesota.
     2
      The district court also granted summary judgment in favor of
Citizens Security Group, Inc., Citizens Fund Insurance Company,
Insurance Company of Ohio, Scott Broughton, and Spencer Broughton
on all of Miller's claims, and in favor of all defendants on
Miller's good faith and fair dealing claim and ERISA claim. Miller
has failed to discuss these parts of the district court's order,
and the district court's decision as to these parties and claims is
thus final.
Miller argues that the district court erred in granting summary judgment
because there was evidence establishing genuine issues of material fact.
We affirm.


     Ray Cronk, Citizens' vice-president of claims, hired Miller as an
outside insurance claims adjustor for Citizens, and Miller began working
on July 10, 1989.       Cronk also hired another outside adjustor, Bruce
Langseth, who is significantly younger than Miller and began working for
Citizens shortly after Miller.


     Citizens employed outside adjustors and inside adjustors to handle
customer claims for payment on losses insured by Citizens.         Citizens
initially assigned a claim to an inside adjustor.       The inside adjustor
would do all the work on a claim that could be done from inside Citizens'
home office.    If a claim required work that could not be performed from
inside the home office, the inside adjustor would contact an outside
adjustor.    The outside adjustor would perform whatever work outside of the
home office that was necessary to resolve the claim.       Cronk supervised
Citizens' inside and outside adjustors.


     At first, Citizens failed to give Miller specific instructions as to
how Citizens expected Miller to handle a claim.   However, in January 1990,
Cronk told Miller that Citizens expected him to meet two requirements on
every claim he handled.     First, Citizens expected Miller to contact the
claimant within twenty-four hours after he received a claim from an inside
adjustor.    Second, Citizens expected Miller to give the inside adjustor a
report on




                                      2
every claim that was not fully resolved within ten days after it was given
to him.     After this January 1990 meeting, Miller understood these two
requirements and knew that Citizens expected him to meet these requirements
on every claim he handled.


     Miller, however, failed to comply with Citizens' contact and report
requirements on some of the claims he handled after January 1990.   Several
inside adjustors complained to Cronk about Miller's failure to comply with
these requirements.    After receiving these complaints, Cronk fired Miller
on March 31, 1992.      Miller was fifty-eight or fifty-nine years old when
                   3
Cronk fired him.


     Like Miller, Langseth also failed to comply with Citizens' contact
and report requirements on some of the claims he handled.     Cronk did not
fire Langseth.


     During Miller's employment with Citizens, Citizens gave him an
employee handbook.     The handbook states on its first page that it "is not
all inclusive, nor is it intended to be a contract."


     Miller filed suit against Citizens claiming that Citizens violated
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994), by
firing him because of his age.      He also claimed that Citizens' employee
handbook created a contract under which Citizens could only fire him for
cause and that Citizens wrongfully discharged him because it did not have
cause.    After both sides conducted discovery, Citizens moved for summary
judgment arguing that it fired Miller because of his poor job performance
and that its employee handbook did not create a contract.
     The district court held that Miller failed to establish a




     3
         The record is not more specific as to Miller's age.

                                       3
prima facie case of age discrimination because there was no evidence that
Miller's job performance met Citizens' legitimate expectations.     The court
further held that the employee handbook was not a contract because it
specifically stated that it was not intended to be a contract.    Due to the
lack of evidence showing that Miller's job performance was satisfactory and
the absence of a contract to fire Miller only for cause, the district court
granted summary judgment in favor of Citizens.    Miller appeals.


                                    I.


     Miller argues that the district court should not have granted summary
judgment on his age discrimination claim because he established a prima
facie case of age discrimination.


     We review the district court’s grant of summary judgment de novo and
apply the same standards as the district court.    See Conner v. Reckitt &
Colman, Inc., 84 F.3d 1100, 1102 (8th Cir. 1996).        Summary judgment is
appropriate if there are no genuine issues of material fact and Citizens
is entitled to judgment as a matter of law.    See Fed. R. Civ. P. 56(c).
We view all the evidence in the light most favorable to Miller, and give
Miller the benefit of all reasonable inferences.        See Johnson v. Group
Health Plan, Inc., 994 F.2d 543, 545 (8th Cir. 1993).    Miller can establish
a genuine issue of material fact by presenting evidence that would permit
a reasonable jury to return a verdict for him on that issue.    See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986).


     Miller relies on the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), framework to prove his claim of age discrimination.         The only
element of Miller's prima facie case of




                                    4
age discrimination in dispute is the second, which the district court
articulated as whether Miller was performing his job at a level that met
Citizens' legitimate expectations when Citizens fired him.             See Halsell v.
Kimberly-Clark Corp., 683 F.2d 285, 290 (8th Cir. 1982), cert. denied, 459
U.S. 1205 (1983); see also O’Connor v. Consolidated Coin Caterers Corp.,
116 S. Ct. 1307, 1310 (1996).


                                           A.


        Miller argues that he was qualified for the position of outside
adjuster.       He first contends that the district court made an erroneous
articulation of the qualification element of the prima facie case when it
required him to show that he was "performing his job at a level which met
[Citizens'] legitimate expectations."              He cites Davenport v. Riverview
Gardens School District, 30 F.3d 940 (8th Cir. 1994), and Hase v. Missouri
Division of Employment Security, 972 F.2d 893 (8th Cir. 1992), cert.
denied, 508 U.S. 906 (1993), which simply expressed the element as a
showing that the employee was "qualified for his position."


        The district court did not err in articulating this element as
performance of the job at a level that met the employer's legitimate
expectations.      McDonnell Douglas makes plain that the facts in Title VII
cases    will   vary,   and   that   the   prima    facie   proof   required   is   "not
necessarily applicable in every respect to differing factual situations."
411 U.S. at 802 n.13.     In Halsell the plaintiff brought an ADEA claim based
on his discharge, and we held, relying on Loeb v. Textron, Inc., 600 F.2d
1003, 1013-14 (1st Cir. 1979), another age discrimination case arising from
a discharge, that a correct statement of the McDonnell Douglas prima facie
elements adapted to those circumstances was that the employee




                                            5
"was performing his job at a level that met his employer's legitimate
expectations."     Halsell, 683 F.2d at 290.    We have reiterated this standard
on numerous occasions.      See Harlston v. McDonnell Douglas Corp., 37 F.3d
379, 382-83 (8th Cir. 1994); Miner v. Bi-State Dev. Agency, 943 F.2d 912,
913 (8th Cir. 1991); Crimm v. Missouri Pac. R.R., 750 F.2d 703, 711 (8th
Cir. 1984).


                                       B.


     We have affirmed summary judgments on the grounds that a plaintiff
has failed to present a prima facie case, which was the holding of the
district court in this case.    See Lang v. Star Herald, 107 F.3d 1308, 1312-
13 (8th Cir. 1997); Harlston, 37 F.3d at 383.               Miller argues that he
presented sufficient evidence to establish the second element of his prima
facie case.


     None of Miller's evidence creates a genuine issue of material fact
as to whether he was meeting the legitimate expectations of Citizens when
Citizens   fired    him.   Miller   stated     in   his   affidavit   that   his   job
performance did meet Citizens' expectations.         A conclusory statement in an
affidavit, however, cannot create a genuine issue of material fact which
precludes summary judgment.      See Jackson v. Anchor Packing Co., 994 F.2d
1295, 1303-04 (8th Cir. 1993).


     Miller also points to three evaluations of his work at Citizens which
show that he was performing satisfactorily in his job.           These evaluations
date from April 18, 1990, July 26, 1990, and January 16, 1991.          We conclude
that these evaluations are not evidence that Miller was meeting Citizens'
legitimate expectations when Citizens fired him because they are too far
removed in time from the date of Miller's discharge, March 31, 1992.
Miller has




                                       6
not presented any evidence that he was meeting Citizens' legitimate
expectations at any time during the year before he was fired.


     Miller    states     that   Citizens       only   told   him   once    that   his   job
performance was unsatisfactory.       Miller argues that this is evidence that
he was meeting Citizens' legitimate expectations.                   We     reject Miller's
argument;    the   fact   that   Citizens       only   told   him   once    that   his   job
performance was unsatisfactory is not evidence that his job performance was
satisfactory.4


     We conclude that Miller failed to establish the second element of his
prima facie case, and thereby failed to make a prima facie case.                    Except
for his own conclusory statement, Miller has presented no evidence that his
job performance met Citizens' legitimate expectations at the time of his
discharge.    The district court did not err in so holding.                  See Harlston,
37 F.3d at 382-83.


                                        II.


     If the case proceeds beyond the prima facie case to articulation of
a legitimate nondiscriminatory reason, and possibly thence to pretext, we
reach issues that this Court en banc has recently discussed in detail in
Ryther v. KARE 11, 108 F.3d 832 (8th Cir. 1997) (en banc), petition for
cert. filed, 65 U.S.L.W. 3694 (U.S. April 4, 1997) (No. 96-1571).                         We
stated that for a plaintiff to succeed, simply proving pretext is not
necessarily




     4
      Miller asserts that Cronk did not mention his job performance
when Cronk fired him. Instead, Cronk merely stated that Miller was
"not a fit" with Citizens. Miller's citation to the record does
not support his assertions. Appellant's Brief at 13, 20-21, 26
(citing Appellant's Appendix at 100377-83, 100470-71). We decline
to search the record for error and thus refuse to consider these
two assertions.       See Farmland Indus. v. Frazier-Parrott
Commodities, Inc., 871 F.2d 1402, 1407 (8th Cir. 1989).

                                            7
enough    if   it   is    inconsistent   with   a   reasonable   inference    of   age
discrimination.          Id. at 837.     We cited with approval Rothmeier v.
Investment Advisers, Inc., 85 F.3d 1328 (8th Cir. 1996), which held that
to survive summary judgment a plaintiff must present evidence of pretext
and evidence from which a reasonable jury could infer that he was fired
because of his age.        Id. at 1336-37.


        The district court in its order stated that Miller's attack on the
honesty of the explanation "imperceptibly" shades into the issue of
pretext, and this makes it desirable that we briefly discuss the issues of
pretext raised by Miller.       We only briefly treat the arguments raised, as
it is evident not only that Miller failed to establish pretext, but his
argument, other than a flat general statement, simply fails to deal with
his ultimate burden of persuading the court that he has been the victim of
intentional discrimination.       See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 515, 519 (1993); Ryther, 108 F.3d at 837-38; Rothmeier, 85 F.3d at
1337.


        For evidence of pretext, Miller points to his statement that Citizens
only told him on one occasion that his job performance was unsatisfactory.
This statement, however, does not prove that Citizens' reason for firing
Miller,     unsatisfactory      job    performance,    is   a    pretext     for   age
discrimination.          On the contrary, it reinforces Citizens' explanation
because it is evidence that Citizens considered Miller's job performance
to be unsatisfactory.
        Additionally, there is uncontradicted evidence in the record that
Citizens told Miller four months and two and a half months before his
discharge that there were problems with his job performance.          Miller admits
that four months before his discharge, Cronk sent Miller a memo stating
that there was "a very serious problem with your work," and that if
Miller's job performance did




                                          8
not improve drastically, Citizens and Miller "might be parting company!!"
Miller also does not deny that Cronk wrote an evaluation of Miller's job
performance which mentioned several problems with Miller's work, that Cronk
discussed the evaluation with Miller, and that Miller signed the evaluation
two and a half months before Citizens fired him.     The evaluation and the
memo show that Citizens told Miller twice within four months of his
discharge that there were problems with his job performance.


     Miller argues that Cronk failed to identify during his deposition
specific instances of Miller's poor job performance and that this is
evidence of pretext.   Cronk gave his deposition almost three years after
he fired Miller from Citizens.   During that deposition Cronk stated several
times that he was aware of specific instances of Miller's poor job
performance when he supervised and fired Miller, but that he could not
presently recall the details of those incidents.    Miller does not dispute
that Cronk was aware of specific instances of Miller's poor job performance
when he supervised and later fired Miller; therefore, Cronk's inability to
remember the details of those same incidents at his deposition is not
sufficient to create a material issue of fact.      Cf. Aucutt v. Six Flags
Over Mid-America, Inc., 85 F.3d 1311, 1317-18 (8th Cir. 1996) (citing Gill
v. Reorganized Sch. Dist. R-6, 32 F.3d 376, 379 (8th Cir. 1994)).
     Miller argues that his job performance was as good as Langseth's, and
yet Citizens fired him, but not the younger Langseth.    Miller attempts to
show that his job performance was equal to or better than Langseth's by
submitting the affidavit of Kathryn Smith.   Smith reviewed a small fraction
of Citizens' claim files to determine how often Miller and Langseth
complied with Citizens' notice and report requirements in those files.   The
problem with Smith's review is that there is no indication that the




                                     9
files she reviewed are representative of Miller's and Langseth's overall
job performance at Citizens.      For example, to evaluate Miller's job
performance, Smith only reviewed the files Miller had in his possession.
There is no evidence, however, that these files are representative of
Miller's overall job performance at Citizens.   Thus, Miller failed to prove
that his job performance was similar to Langseth's, and therefore, no
reasonable fact finder could draw an inference of discrimination from
Citizens' firing of Miller and continued employment of Langseth.        See
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972-73 (8th Cir. 1994).


     Finally, Miller argues that he received less extensive training than
Langseth and that this is evidence of pretext.        Miller states in his
affidavit that after his January 1990 meeting with Cronk, he understood
Citizens' contact and report requirements and that Citizens expected him
to comply with those requirements on every file he handled.     Miller also
admits in his affidavit that he failed to comply with those requirements
after January 1990.   Cronk states in his affidavit and deposition that
Miller's continued failure to comply with Citizens' contact and report
requirements after January 1990 caused him to fire Miller.        Thus, the
undisputed record shows that a lack of training had nothing to do with
Citizens' firing of Miller.
     We think it abundantly clear that the district court did not err in
entering summary judgment on behalf of Citizens.   For, contrary to what we
have held above, even if we concede that Miller has presented a prima facie
case, and if we further concede that Miller's arguments demonstrate
pretext, there simply is no showing in the record before us that Miller has
met his ultimate burden of establishing that age discrimination was the
cause for his discharge.   Our conclusions are further reinforced by Cronk's
hiring of Miller less than three years before his firing of Miller.




                                     10
As we have stated in similar cases, it is simply incredible, in light of
the weakness of Miller's evidence otherwise, that Cronk, who hired Miller
when Miller was age fifty-five or fifty-six, had suddenly developed an
aversion to older people when he fired Miller less than three years later.
See Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 175 (8th Cir. 1992).
Citizens is entitled to summary judgment on Miller's age discrimination
claim.   See Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 988-89 (8th Cir.
1996).


                                      III.


     Miller argues that a provision in Citizens' employee handbook created
a contract that obligated Citizens to fire him only if Citizens had cause
to do so.   Miller contends that Citizens did not have cause to fire him and
therefore breached the contract created by the handbook.


     Both parties agree that Minnesota law governs this claim.         Under
Minnesota law, a provision in an employee handbook can be a binding
contract between an employer and his employees if it meets certain
requirements.   See Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.
1983).   Citizens' employee handbook, however, states on its first page that
it is not intended to be a contract.


     The Minnesota Supreme Court has not ruled on the effect of such a
disclaimer in an employee handbook.    We must, therefore, predict the result
the Minnesota Supreme Court would reach on this issue.          See B.B. v.
Continental Ins. Co., 8 F.3d 1288, 1291 (8th Cir. 1993).      We may look to
the decisions of the Minnesota Supreme Court and the Minnesota Court of
Appeals for guidance.   See id.


     The Minnesota Supreme Court has stated that a disclaimer




                                      11
stating that an employee handbook "shall not be construed to form a
contract" prevents an employee from claiming contractual rights under that
handbook.   Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 705, 708
(Minn. 1992).   While the court's statement in Feges is dicta, we conclude
that it indicates the position the court would take on this issue.      Our
conclusion is reinforced by the holdings of two decisions of the Minnesota
Court of Appeals.     See Michaelson v. Minnesota Mining & Mfg. Co., 474
N.W.2d 174, 180 (Minn. Ct. App. 1991), aff'd mem., 479 N.W.2d 58 (Minn.
1992); Audette v. Northeast State Bank, 436 N.W.2d 125, 127 (Minn. Ct. App.
1989).   The Minnesota Court of Appeals held in Michaelson and Audette that
a disclaimer in an employee handbook prevents an employee from claiming
contractual rights under that handbook.     Based on Feges, Michaelson, and
Audette, we hold that the disclaimer in Citizens' employee handbook
prevents Miller from claiming contractual rights under Citizens' handbook.


     In so holding, we reject the district court's interpretation of
Minnesota law in O'Brien v. A.B.P. Midwest, Inc., 814 F. Supp. 766, 776 (D.
Minn. 1992).    We conclude that the Minnesota Supreme Court would hold that
a disclaimer prevents an employee from claiming contractual rights under
an employee handbook even when other provisions of the handbook are
specific and unequivocal.     See Feges, 483 N.W.2d at 705, 708 (stating in
dicta that a disclaimer in an employee handbook would prevent an employee
from claiming contractual rights under another handbook provision which was
specific and unequivocal).5




     5
      Our recent decision in Patterson v. Tenet Healthcare, Inc.,
No. 96-2587 (8th Cir. May 12, 1997), is not to the contrary.
Patterson recognized that employee handbooks are not contracts
under Missouri law, but that an acknowledgment form in the handbook
that Patterson signed contained an agreement to arbitrate which was
an enforceable contract under Missouri law. Slip op. at 3-5.

                                     12
     Accordingly, we affirm the district court's grant of summary judgment
in favor of Citizens.


     A true copy.


           Attest:


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




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