                                                   [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT         FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 05-12139                  December 1, 2005
                          Non-Argument Calendar           THOMAS K. KAHN
                                                                CLERK
                        ________________________

                D. C. Docket No. 03-01511-CV-ORL-18-DAB

THEODORE R. VAUGHAN,

                                                           Plaintiff-Appellant,

                                   versus

MORGAN STANLEY DW INC.,
a Delaware corporation formerly known as Dean
Witter Reynolds, Inc.,

                                                          Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                            (December 1, 2005)

Before ANDERSON, DUBINA and WILSON, Circuit Judges.

PER CURIAM:
      Appellant Theodore R. Vaughan, a 59-year-old former employee of Morgan

Stanley DW Inc. (“Morgan Stanley”) with approximately 10 years experience as a

financial advisor and 4 years experience at Morgan Stanley, appeals the district

court’s order granting summary judgment in favor of Morgan Stanley, in his age

discrimination action, brought pursuant to the Age Discrimination in Employment

Act, 29 U.S.C. §§ 621-23 (“ADEA”). In his complaint, Vaughan argued that his

termination pursuant to a reduction in force (“RIF”) was illegal.

      On appeal, Vaughan argues that the district court erred by concluding that

he failed to state a claim for age discrimination. Vaughan first asserts that he

established a prima facie case of discrimination because (1) he was protected by

the ADEA and suffered adverse employment action; (2) he demonstrated that he

was qualified for his position at the time of his termination; and (3) Morgan

Stanley intended to discriminate on the basis of age in making its termination

decision. Vaughan asserts that he produced compelling evidence of Morgan

Stanley’s decision to retain lower-producing younger employees while terminating

higher-producing older employees. Vaughan asserts that age played a role in the

design of the RIF because Morgan Stanley used experience as a proxy for age in

developing the RIF criteria.




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      We review “de novo the district court’s grant of summary judgment,

applying the same legal standards as the district court, and viewing all facts and

reasonable inferences drawn therefrom in the light most favorable to . . . the non-

moving party.” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d

501, 507 (11th Cir. 2000). Summary judgment is warranted if the evidence shows

“that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

      The ADEA makes it unlawful “for an employer to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA applies to

individuals who are at least 40 years old. 29 U.S.C. § 631(a).

      We have held that, “[i]n an employment discrimination case, the plaintiff

must produce sufficient evidence to support an inference that the

defendant-employer based its employment decision on an illegal criterion.”

Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997). “In proving an age

discrimination claim, a plaintiff can establish a prima facie case of discrimination

through either direct evidence of discrimination or a variation of the four-part test

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36

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L. Ed. 2d 668 (1973) for circumstantial evidence.” Damon v. Fleming

Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999). Each of

these types of proof will be discussed in turn.

Direct Evidence of Age Discrimination

      We have noted that “[d]irect evidence is evidence which, if believed, proves

the existence of the fact in issue without inference or presumption.” Jones v.

Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 n.11 (11th Cir. 1998).

However, “only the most blatant remarks, whose intent could be nothing other

than to discriminate on the basis of age, constitute direct evidence of

discrimination.” Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th

Cir. 1990) (quotation and alterations omitted).

      In the instant case, after reviewing the record, we conclude that Vaughan

has not established any direct evidence of age discrimination. Furthermore,

Vaughan conceded that he did not perceive age discrimination while he worked at

Morgan Stanley. Thus, we will examine whether Vaughan has established a prima

facie case of age discrimination based upon circumstantial evidence.

Circumstantial Evidence of Age Discrimination

      When a plaintiff does not present direct evidence of age discrimination, he

“relies on circumstantial evidence and invokes the burden-shifting framework

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established in” McDonnell Douglas. Cofield v. Goldkist, Inc., 267 F.3d 1264,

1267 (11th Cir. 2001). In McDonnell Douglas, the Supreme Court held that the

plaintiff generally has the burden of establishing a prima facie case of

discrimination. 411 U.S. at 802, 93 S. Ct. at 1824. Establishing a prima facie case

of discrimination creates a presumption of unlawful discrimination, and the

employer must come forward with evidence of a legitimate non-discriminatory

reason for its decision. Id. When the employer expresses one or more legitimate

reasons for its actions, the presumption of discrimination evaporates, and the

plaintiff must raise a genuine issue of material fact as to whether the reasons

offered by the defendant are pretextual. Id. at 804, 93 S. Ct. at 1825. In order to

establish pretext, a plaintiff must present evidence “sufficient to permit a

reasonable factfinder to conclude that the reasons given by the employer were not

the real reasons for the adverse employment decision.” Chapman v. AI Transport,

229 F.3d 1012, 1024 (11th Cir. 2000) (quotation omitted).

      In an RIF case, “the plaintiff establishes a prima facie case by

demonstrating (1) that he was in a protected age group and was adversely affected

by an employment decision; (2) that he was qualified for his current position or to

assume another position at the time of discharge; and (3) evidence by which a fact

finder reasonably could conclude that the employer intended to discriminate on the

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basis of age in reaching that decision.” Watkins v. Sverdrup Tech., Inc., 153 F.3d

1308, 1314 (11th Cir. 1998) (quotation omitted).

      We conclude from the record that in the instant case, Vaughan satisfied the

first element of the Watkins test because he was 59 years old at the time of his

termination. Vaughan also established the second element of the Watkins test

because he had approximately ten years experience as a financial advisor and he

worked at Morgan Stanley for approximately four years. See Damon, 196 F.3d at

1360. However, Vaughan failed to establish the third element. Vaughan’s

allegation that Morgan Stanley systematically removed more productive older

workers while retaining less productive younger workers is without merit.

Vaughan relied upon his own statistical analysis to support his allegation, but he

admitted in his deposition that he was not a statistician and did not fully analyze

the RIF data. Also, Vaughan conceded that over half of the financial advisors at

his Morgan Stanley branch were over the age of 40, and he was the only one in

that age group who was terminated during the RIF.

Conclusion

       Viewing the facts in a light most favorable to Vaughan, and upon careful

review of the record and the parties’ briefs, we find no reversible error.

Accordingly, we affirm the district court’s grant of summary judgment.

      AFFIRMED.

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