                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2177
                                  ___________

John R. Beckman,                   *
                                   *
               Appellant,          * Appeal from the United States
                                   * District Court for the District
     v.                            * of Minnesota.
                                   *
KGP Telecommunications, Inc.,      *     [UNPUBLISHED]
                                   *
               Appellee.           *
                              ___________

                            Submitted: February 14, 2005
                               Filed: April 20, 2005
                                ___________

Before MELLOY, HEANEY, and FAGG, Circuit Judges.
                           ___________

PER CURIAM.

       John R. Beckman began working for KGP Telecommunications, Inc. in 1997
when he was fifty-four years old. Beckman first worked as an outside sales
representative, and later as national sales manager for one of KGP’s divisions. In
2001, KGP suffered a financial downturn resulting in a 50% reduction of its
workforce. Between August 2001 and February 2002, KGP implemented three
workforce reductions, engaged in two organizational restructurings, and enforced a
hiring and wage freeze. During this timeframe, Beckman’s position was merged with
another. Beckman was not selected for the consolidated position, so he returned to
outside sales at a reduced salary. KGP chose its director of business development,
fifty-year-old John Grubb, to fill the consolidated position. Grubb became
Beckman’s supervisor. In February 2002, Beckman was laid off as part of KGP’s
third reduction in force.

       Beckman then brought this lawsuit against KGP alleging age discrimination.
The district court* granted summary judgment to KGP, finding Beckman failed to
establish a prima facie case of discrimination, KGP had a legitimate,
nondiscriminatory reason for terminating Beckman’s employment, and Beckman
failed to show KGP’s nondiscriminatory reason for terminating him was a pretext for
age discrimination.

       On appeal, Beckman argues the district court committed error in granting
summary judgment. Under the burden-shifting framework in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), Beckman had to establish a prima facie
case of discrimination. See Chambers v. Metropolitan Prop. & Cas. Inc. Co., 351
F.3d 848, 855-56 (8th Cir. 2003) (stating elements of prima facie ADEA case
involving reduction in force). The burden then shifted to KGP to articulate some
legitimate, nondiscriminatory reason for Beckman’s termination. Id. at 855. After
KGP satisfied its burden of production, Beckman was required to show KGP’s stated
reason–a reduction in force– was a pretext for age discrimination. Id.

       Here, Beckman failed to present sufficient evidence that age discrimination was
the true reason for his termination. Beckman was in the same age group when he was
hired and fired, he was not replaced by anyone younger, he was not a superior
candidate for the consolidated position, the employees allegedly given preferential
treatment were in the same age group as Beckman, and the KGP workforce got older,
rather than younger, during the reductions in force.


      *
      The Honorable Joan Ericksen, United States District Judge for the District of
Minnesota.

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       Beckman asserts comments allegedly made by Grubb and the owner’s husband
show he was fired because of age discrimination. When Beckman met with Grubb
in September 2001 to discuss his sales job, Grubb remarked, “I guess I need to get
you some accounts, or you’ll be down the road, old man.” The next month, the
owner’s husband called Beckman on the telephone to discuss his job change and
asked, “Hey old man, you haven’t gone and slit your wrists or anything, have you?”
Beckman later asked Grubb why his salary was cut, and Grubb responded, “I’m not
going to listen to some old f***er ask questions about everything I am trying to do,”
and “We could have hired . . . two younger people, more aggressive people for what
we are paying you.” The comments by Grubb and the owner’s husband do not raise
an inference of age discrimination because Beckman did not present any evidence
that either man made the decisions that negatively affected him. Remarks about age
may establish pretext under some circumstances, but not when the remarks are made
by someone other than a decisionmaker. Hitt v. Harsco Corp., 356 F.3d 920, 925 (8th
Cir. 2004). Although Grubb and the strategic planning committee had recommended
that Beckman be included in the first two reductions in force, the ultimate
decisionmakers, Trevor and Timothy Putrah, had rejected the recommendations.
During the third round of layoffs, the Putrahs decided to lay off Beckman. Even if
Grubb’s remarks are viewed as evidence of his motive to discharge persons based on
age, the remarks do not support an inference that the Putrahs’ decision to terminate
Grubb was motivated by his age. Id.

       Beckman contends that rather than the familiar McDonnell Douglas burden-
shifting analysis, the district court should have applied Desert Palace v. Costa, 123
S. Ct. 2148, 2155 (2003), which holds a plaintiff may be entitled to a mixed-motive
jury instruction without presenting direct evidence of discrimination if he shows
discrimination was a “motivating factor” in the adverse employment decision.
Assuming without deciding that Costa applies to ADEA claims, the district court
properly granted summary judgment to KGP because Beckman presented insufficient
evidence to support a finding that his age was a “motivating factor” in his

                                         -3-
termination. See Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 615 (8th
Cir. 2003).

      We thus affirm the district court’s grant of summary judgment to KGP.
                      ______________________________




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