                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               ___________

                               No. 97-3340
                               ___________

Glynn Vaughn,                        *
                                     *
           Appellant,                *
                                     *    Appeal from the United States
     v.                              *    District Court for the
                                     *    Western District of Arkansas
Roadway Express, Inc.,               *
                                     *
           Appellee.                 *

                               ___________

                          Submitted: March 11, 1998

                              Filed: December 28, 1998
                               ___________

Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges,
and NANGLE,1 District Judge.
                             ___________

FLOYD R. GIBSON, Circuit Judge.




     1
        The HONORABLE JOHN F. NANGLE, Senior United States District Judge
for the Eastern District of Missouri, sitting by designation.
       Glynn Vaughn appeals from the order of the district court2 granting summary
judgment to his former employer, Roadway Express, Inc. (Roadway). Vaughn alleges
that Roadway terminated him because of his age in violation of the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1995). After careful review of
the record, we affirm the district court.

I.    BACKGROUND

      As we are reviewing a grant of summary judgment, the following facts are
presented in the light most favorable to Vaughn, the non-moving party. See Roberts
v. Francis, 128 F.3d 647, 650 (8th Cir. 1997). Glynn Vaughn, a forty-nine year old
Caucasian male, had been employed by Roadway for twenty-four years at the time of
his termination on May 5, 1995.           In January of 1994, when Vaughn was
approximately forty-seven years old,3 he received a promotion to terminal manager of
three Roadway terminals. Prior to this promotion, Vaughn had been the terminal
manager of two terminals. Vaughn had never experienced any adverse disciplinary or
work performance problems prior to his promotion.

      At some time in 1994, Roadway implemented a new computer program
designed, among other things, to measure the operating efficiency of its terminals and
track the flow of freight between terminals. The new program was specifically
designed to prevent terminals from receiving credit for freight which was transferred
off one trailer and then returned to the same trailer.4


      2
      The HONORABLE HARRY F. BARNES, United States District Judge for the
Western District of Arkansas.
      3
        The record is unclear regarding Vaughn's age: both parties place Vaughn at
forty-six or forty-seven years old at the time of his promotion.
      4
        A single trailer load of freight may have several different destinations. It was
not uncommon for the workers to load a trailer in a "first in, first out" manner. That
is, the workers would remove all the freight in order to unload the freight at the front

                                          -2-
       In June of 1994, Vaughn received his annual performance review. Vaughn
received negative ratings on two of ten performance goals at his review: the dock
production (DP) goal and the pickup and delivery (P&D) goal. At some point after his
annual review, Vaughn began entering inaccurate information into the computer
program. Vaughn manually altered the DP data to include freight transferred from and
returned to the same trailer. On May 5, 1995, Vaughn's supervisor questioned him
regarding the inaccurate computer entries. Vaughn confirmed that he had manually
altered the DP data. Roadway immediately terminated Vaughn. A thirty-two year old
Caucasian male replaced Vaughn.

       Vaughn initiated this action against Roadway claiming age discrimination in
violation of the ADEA, 29 U.S.C. §§ 621-34, and a violation of the Employment
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1140 (1995). Roadway
moved for summary judgment, which the district court granted. Vaughn appeals the
order granting summary judgment on his age discrimination claim.5

II.    DISCUSSION

        We review a grant of summary judgment de novo and will affirm the judgment
only if, upon viewing the facts in the light most favorable to the non-moving party, no
genuine issue of material fact exists from which a reasonable juror could find in favor
of the non-moving party. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1985). While the party seeking summary judgment bears the burden of




of the trailer at a given destination, rather than removing the freight in a "last in, first
out" manner. Terminal employees would then reload the remaining freight onto the
same trailer.
       5
       Vaughn did not appeal the district court's order granting summary judgment on
his ERISA claim.

                                            -3-
demonstrating the absence of any genuine issue of material fact, the non-moving party
must affirmatively set forth specific facts showing the existence of a genuine issue for
trial and may not merely rest upon allegations or denials. See Celotex, 477 U.S. at 324;
Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1021 (8th Cir. 1998).

        The burden-shifting scheme developed by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), applies to this case as Vaughn is
relying on circumstantial evidence to prove his discrimination claim. This three-step
analysis first requires that the plaintiff present a prima facie case of discrimination.
Once the plaintiff puts forth evidence to establish his prima facie case, a legal
presumption of unlawful discrimination is created. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 506 (1993). The burden of production then shifts to the employer
to articulate a legitimate non-discriminatory reason for the adverse employment action.
If the employer identifies a legitimate non-discriminatory reason for its action, the
presumption created by the prima facie case "simply drops out of the picture." Id. at
511 (citations omitted). The burden then shifts back to the plaintiff, who must show
that the employer's proffered reason is pretextual and that "he has been the victim of
intentional discrimination." Id. at 508 (citations omitted).

        It is undisputed that Vaughn has established his prima facie case. Under the
ADEA, the elements of a prima facie case are: 1) the plaintiff is within the protected
age group;6 2) the plaintiff met the applicable job qualifications; and 3) the plaintiff was
replaced by a younger person. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771,
776 (8th Cir. 1995). The parties similarly do not dispute that Roadway has articulated
a legitimate, non-discriminatory reason for its termination of Vaughn. Roadway claims




       6
       The ADEA protects individuals who are at least forty years of age. See 29
U.S.C. § 631 (1995).

                                            -4-
that Vaughn violated company policy7 by falsifying computer entries and improperly
inflating his PD ratings. Vaughn contends that Roadway's proffered reason for his
termination is false and merely a pretext for intentional age discrimination.

       The relevant issue on appeal is whether Vaughn produced sufficient evidence of
pretext to allow a reasonable juror to infer that Roadway terminated him because of his
age, rather than his conduct. Vaughn contends that his falsification8 of records created
more accurate records than Roadway's computer program, that the company should
have practiced progressive discipline in his case, and that there are other indicia of a
general age bias on the part of Roadway. Vaughn claims that this creates a reasonable
inference of age discrimination and that a reasonable juror could find that Roadway
impermissibly discriminated against Vaughn due to his age. We disagree.
       This Court recently addressed the sufficiency of evidence of pretext required to
withstand a summary judgment motion in Ryther v. KARE 11, 108 F.3d 832, 837 (8th
Cir.) (en banc), cert. denied, 117 S. Ct. 2510 (1997). In Ryther, we stated that
"evidence of pretext will not by itself be enough to make a submissible case if it is,
standing alone, inconsistent with a reasonable inference of age discrimination. . . . The
plaintiff must still persuade the [fact-finder] . . . that the employment decision was
based upon intentional discrimination." Id. at 837-38. The overall evidence of pretext
must allow a reasonable fact-finder to infer that the employer's adverse employment
decision was motivated by discriminatory animus. See Rothmeier v. Investment


      7
        The applicable section of Roadway's Code of Corporate Conduct states: "Any
activity by an employee or representative of the Company that in any way violates the
law or is otherwise unethical, even if intended to be 'beneficial' to the Company, is in
fact directly contrary to the interests of the Company. . . . Violations of this Code or
the Company's other compliance policies will result in discipline up to and including
immediate separation from employment." J.A. at 60.
      8
        In his affidavit Vaughn characterizes his actions as "corrections" to the
computer program. He admits that "[i]n the sense that there was no second trailer, and
only in that sense, is what I did a 'falsification.'" J.A. at 76.

                                          -5-
Advisers, Inc., 85 F.3d 1328, 1336 (8th Cir. 1996). Upon consideration of Vaughn's
circumstantial evidence of pretext, we conclude that Vaughn has failed to offer
sufficient evidence to allow a reasonable juror to conclude that Vaughn's age, rather
than his conduct, motivated Roadway's decision to terminate him.

        As evidence of pretext, Vaughn alleges that his falsification of computer data
actually produced a more accurate PD figure than did the unadulterated computer
program and that his actions neither harmed his employer nor benefitted himself.
Nonetheless, neither the accuracy of Roadway's computer system nor Roadway's
business decision to deny credit to terminals for freight unloaded and reloaded onto the
same trailer is relevant to the issue presented here. As we have frequently noted, "the
employment-discrimination laws have not vested in the federal courts the authority to
sit as super-personnel departments reviewing the wisdom or fairness of the business
judgments made by employers, except to the extent that those judgments involve
intentional discrimination." Hutson, 63 F.3d at 781. In his supporting affidavit Vaughn
states, "[t]he fact that I was right and the company (or the computer program) was
wrong, is the primary evidence I have that the defendant's motivation in terminating me
must have been other than stated." J.A. at 77 (internal quotations omitted) (emphasis
in original). We find Vaughn's allegation that Roadway must have had some other
motivation in terminating him, because his actions created more accurate PD figures,
insufficient to support a reasonable inference of age discrimination.

      Vaughn also alleges that the lack of progressive discipline in his case illustrates
that Roadway's purported reason for terminating him was pretextual. In his affidavit
Vaughn states,
      [t]hroughout my experience as an employee of defendant progressive
      discipline was always practiced. That is, discipline invariably began with
      a warning and progressed to discharge only after less severe punishments
      failed to correct the employee's problem or performance. Only the most
      heinous offenses, such as theft or fighting, were ever punished by first
      offense discharge.

                                          -6-
J.A. at 77 (emphasis in original).9 Vaughn offers no evidence of Roadway's progressive
discipline policy other than his own statement. We find Vaughn's unsupported
allegations insufficient to support a reasonable inference of age discrimination. See
e.g., Hill v. St. Louis University, 123 F.3d 1114, 1119 (8th Cir. 1997).

       Lastly, Vaughn alleges that Roadway has exhibited other indicia of a general age
bias. Vaughn cites the following as evidence of this bias: 1) his own status as the
oldest manager in the region not yet eligible for retirement; 2) the termination of two
unidentified managers also near fifty years of age; 3) his lack of personal knowledge
of any person over forty years of age being promoted from rank and file to supervisor,
or being hired from outside as supervisor; and 4) his lack of personal knowledge of any
person over forty years of age being promoted to manager.10 See J.A. at 78.

       Roadway's promotion of Vaughn at the age of forty-seven does not support
Vaughn's allegations that a general bias against older employees was present at
Roadway. See Hennessey v. Good Earth Tools, Inc., 126 F.3d 1107, 1109 (8th Cir.
1997); Grossman v. Dillard Dep't Stores, Inc., 109 F.3d 457, 459 (8th Cir. 1997). "It
is simply incredible . . . that the company officials who [promoted Vaughn] at age
[forty-seven] had suddenly developed an aversion to older people less than two years
later." Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 175 (8th Cir. 1992).




      9
         According to the parties' briefs and their remarks at oral argument, Vaughn is
the first terminal manager with whom Roadway has faced this issue regarding the
falsification of company data. While Vaughn argues that the only discipline required
by Roadway was to "point out to me that I should stop the practice," J.A. at 78, it is not
the province of this Court to judge the wisdom of particular employment decisions.
See Brown v. McDonnell Douglas Corp., 113 F.3d 139, 141 (8th Cir. 1997) .
      10
        Vaughn admits, however, that Roadway has promoted managers over forty
years of age to higher positions, including, of course, himself. See J.A. at 78.

                                           -7-
Similarly, we find that Vaughn's own admission that Roadway promoted managers over
the age of forty undermines his allegations of a general age bias on the part of his
former employer. Therefore, we conclude that Vaughn's unsubstantiated allegations
are insufficient to support a reasonable inference of age discrimination.

       To survive summary judgment, Vaughn must present evidence sufficient to
create a genuine issue of fact as to whether Roadway intentionally discriminated against
him because of his age. We find Vaughn's evidence of pretext insufficient to allow a
reasonable juror to infer that Vaughn's age "actually motivated" Roadway's decision to
terminate him. Rothmeier, 85 F.3d at 1337 (citations omitted).
We agree with the district court that Vaughn has not met this burden and, accordingly,
affirm the district court's grant of summary judgment.

III.     CONCLUSION

         For the reasons set forth in this opinion, we affirm the judgment of the district
court.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       I respectfully suggest that the court has erred in concluding that Mr. Vaughn did
not produce sufficient evidence of pretext to survive summary judgment. In the first
place, I am not at all sure that the court has correctly stated the governing legal
principles. Ryther v. KARE 11, 108 F.3d 832, 836-37 (8th Cir.) (en banc), cert. denied,
117 S. Ct. 2510 (1997), requires only that the plaintiff produce evidence that the
business reason that a defendant articulates for making an adverse employment decision
is a pretext for the kind of discrimination of which the plaintiff is complaining. No
more than that is required. In any case, the plaintiff has presented a great deal of
evidence of pretext here, all of which the court outlines in its opinion. The court's
conclusion that it is insufficient to allow the plaintiff to avoid summary judgment is, in

                                            -8-
my view, incorrect: The evidence raises a clear inference that the stated reason for
Mr. Vaughn's termination was not the real one, and Mr. Vaughn has therefore made out
a submissible case.

       One of the court's statements deserves, I think, some particular comment. It is
no doubt true, as the court says, that we do not "sit as super-personnel departments
reviewing the wisdom or fairness of the business judgments made by employers." That
is an unexceptionable proposition, one to which all judges would agree, but it has no
application to the context. Mr. Vaughn is not claiming that he cannot be terminated for
a particular reason; he is asserting that if the reason given for his termination is one that
is contrary to the self-interest of the employer, an inference is raised that it is not the
real reason. In other words, it is a pretext.

         For those reasons, and others, I respectfully dissent from the judgment of the
court.

         Affirmed.

         A true copy.

               Attest:

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




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