                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 08-1766
                               ________________

Jean King,                               *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
United States of America; Tom            *
Vilsack,1 Secretary of the United        *
States Department of Agriculture, in     *
his official capacity,                   *
                                         *
             Appellees.                  *


                               ________________

                           Submitted: October 16, 2008
                               Filed: January 29, 2009
                              ________________

Before GRUENDER, BEAM and SHEPHERD, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.1

      Jean King appeals from the district court’s judgment in favor of the appellees
on her age discrimination claims under the Iowa Civil Rights Act (“ICRA”), Iowa

      1
       Tom Vilsack became Secretary of the United States Department of Agriculture
on January 20, 2009, and is automatically substituted as appellee under Federal Rule
of Appellate Procedure 43(c)(2).
Code §§ 216.1 et seq., and the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq.2 For the reasons discussed below, we remand for
further proceedings.

I.    BACKGROUND

      In January 2005, the United States Department of Agriculture (“USDA”)
announced a position opening for a “single family housing specialist” in the rural
development section of its office in Le Mars, Iowa. Several people applied for the
specialist position, including employees Jean King and Catherine Evans. At the time,
King was fifty-four years old and Evans was twenty-five years old. The selection
committee for the specialist position consisted of Director Dr. Daniel Brown, Regional
Director David Dunfee, Program Specialist Tim Helmbrecht, and Human Resources
Manager Denise Toney.

       After the application deadline had passed, Toney reviewed the applications.
She first rejected those applicants who did not meet the basic eligibility requirement
of a four-year college degree or one year of specialized service. Toney then ranked
the remaining applicants using a “KSA” (knowledge, skills and abilities) process and
forwarded the files of the top six applicants, including King and Evans, to the
selection committee. Brown and Dunfee then conducted phone interviews with the
six candidates, and following the interviews, the entire committee met and determined
that King and Evans were the top two candidates. On March 4, 2005, the committee
unanimously agreed to offer the specialist position to Evans based upon her
undergraduate and graduate degrees, experience working in a bank, “go-getter”
attitude, computer skills, and familiarity with the rural development section’s loan-


      2
       Because King does not provide any argument in her briefs regarding her claim
under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., she is deemed to have
waived this issue on appeal. See Fair v. Norris, 480 F.3d 865, 869 (8th Cir. 2007).

                                         -2-
writing process. Thereafter, King sued the USDA, alleging that the USDA
discriminated against her because of her age when it selected Evans for the specialist
position.

        At the bench trial, King elicited testimony from fellow rural development
section employees regarding statements allegedly made by selection committee
members that King claims are direct evidence of age discrimination. First, Karen
Triplett testified that in April 2003, Brown told her he wanted to bring “educated,
young blood” into the USDA. Second, Kimberly Clay and Sonia Pierce testified that
in February 2004, Dunfee told them he had just hired a “young, skinny blonde” with
a master’s degree. Third, Cherie Byrum testified that at a work party in September or
October 2004, Brown told her and two other employees that the “has-beens need to
listen to the newbies.” Fourth, Triplett testified that at a retirement party in March or
April 2005, she and Dunfee discussed the strained relations in the Le Mars office and
Brown’s philosophy of hiring younger, educated people.

       King also presented indirect evidence that she alleged was sufficient to establish
a prima facie case of age discrimination and to demonstrate that the USDA’s proffered
non-discriminatory reasons for selecting Evans instead of King were pretexts for
discrimination. King’s evidence that the USDA’s reasons were pretextual included
testimony that purported to show that: (1) Brown and Dunfee made statements that
exhibited their preference for younger employees; (2) Evans lacked the qualifications
cited by the USDA in its non-discriminatory reasons; (3) King’s qualifications were
superior to those of Evans; (4) the selection process was procedurally different for
King and Evans because their interview questions differed; and (5) there was an
atmosphere of discrimination against older employees in the rural development
section.

    In its case-in-chief, the USDA elicited testimony from members of the selection
committee to demonstrate that age was not a consideration in the committee’s

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decision. The committee members detailed the selection process for the specialist
position and their legitimate, non-discriminatory reasons for choosing Evans.

       After the conclusion of the bench trial, the district court issued its written
decision and entered judgment in favor of the USDA. The court found that the three
statements made by Brown and Dunfee to Triplett, Clay, Pierce and Byrum during
2003 and 2004 were not direct evidence because they did not demonstrate a specific
link between the alleged discriminatory animus and the committee’s decision to select
Evans rather than King. The court did not mention the fourth piece of allegedly direct
evidence, Dunfee’s statement to Triplett in March or April 2005 at a retirement party
concerning Brown’s philosophy of hiring younger, educated people. However, the
court did note:

      statements made after the hiring decision was implemented, explaining
      why the decision maker chose one candidate over another, may be
      relevant. For example, had Dr. Brown made a statement after Ms. Evans
      was given the job that he did not hire the plaintiff because she was over
      the age of 40, which there is no evidence that he did, but that surely
      would be relevant to the Court’s determination here.

Regarding the indirect evidence, the court found that King established a prima facie
case of age discrimination; that the USDA proffered legitimate, non-discriminatory
reasons for the employment decision; and that King did not prove that the USDA’s
reasons were pretexts for age discrimination. The court again did not discuss
Triplett’s testimony about Dunfee’s statement at a retirement party in March or April
2005 in its analysis of the indirect evidence.

       King appeals the district court’s judgment. She argues that the district court
erred in holding that the four statements by Brown and Dunfee did not constitute
direct evidence of age discrimination. Additionally, King claims that the district court
erred in analyzing her indirect evidence of discrimination insofar as it accepted the


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USDA’s proffered legitimate, non-discriminatory reasons for the committee’s decision
and rejected her assertion that those reasons were pretextual.

II.   DISCUSSION

       Following a bench trial, “we review the trial court’s factual findings for clear
error and its legal conclusions de novo.” Richardson v. Sugg, 448 F.3d 1046, 1052
(8th Cir. 2006). “This court reviews the district court’s ultimate finding of
discrimination for clear error, giving due regard to the opportunity of the district court
to judge the credibility of the witnesses.” Ledbetter v. Alltel Corporate Servs., Inc.,
437 F.3d 717, 722 (8th Cir. 2006).

       Under the ADEA, employers are forbidden from taking adverse employment
actions against employees because of their age. Fitzgerald v. Action, Inc., 521 F.3d
867, 876 (8th Cir. 2008) (citing 29 U.S.C. § 623(a)(1)).3 A plaintiff may establish her
claim of intentional age discrimination through either direct evidence or indirect
evidence. Ward v. Int’l Paper Co., 509 F.3d 457, 460 (8th Cir. 2007). Where the
plaintiff presents direct evidence of discrimination, the court analyzes her claim under
the mixed-motives framework established in Price Waterhouse v. Hopkins, 490 U.S.
228, 278-79 (1989) (O’Connor, J., concurring). Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006). Alternatively, where
the plaintiff presents indirect evidence of discrimination, the court analyzes her claim
under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1042
(8th Cir. 2007).

      A. Direct Evidence

      “Direct evidence is evidence showing a specific link between the alleged


      3
       Because the same analysis applies to age discrimination claims under the
ADEA and the ICRA, we do not separately discuss King’s claim under the ICRA. See
Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1095 n.4 (8th Cir. 2007).

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discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.” Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir.
2007) (internal quotation and alteration omitted). We have held that “‘stray remarks
in the workplace,’ ‘statements by nondecisionmakers,” and ‘statements by
decisionmakers unrelated to the decisional process’ do not constitute direct evidence.”
Schierhoff, 444 F.3d at 966 (quoting Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,
449 (8th Cir. 1993)); see also Price Waterhouse, 490 U.S. at 277 (O’Connor, J.,
concurring). Direct evidence, however, “may include ‘evidence of actions or remarks
of the employer that reflect a discriminatory attitude,’ ‘comments which demonstrate
a discriminatory animus in the decisional process,’ or comments ‘uttered by
individuals closely involved in employment decisions.’” King v. Hardesty, 517 F.3d
1049, 1058 (8th Cir. 2008) (quoting Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.
1991)).

       King bases her direct evidence claim on the four statements made by Brown and
Dunfee between 2003 and 2005, which she alleges show a specific link between the
committee’s discriminatory animus and its choice of Evans for the specialist position.
We agree with the district court that the first three of these four statements, those
made during 2003 and 2004, are not direct evidence of discrimination because they
do not establish a specific link between the alleged animus and the committee’s March
4, 2005 decision to select Evans rather than King. Brown and Dunfee made these
statements months before the USDA announced the specialist position vacancy and
months before Evans was selected. See Ramlet, 507 F.3d at 1153 (holding that
comments made more than four months prior to the adverse employment action were
not connected to the decision making process and therefore were not direct evidence).
Because these comments did not relate to the committee’s selection process, we agree
with the district court’s finding that they are statements by decisionmakers unrelated
to the decisional process itself and do not constitute direct evidence. See Schierhoff,
444 F.3d at 966.


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        We cannot, however, determine whether the last of these four statements,
Dunfee’s alleged statement to Triplett at a retirement party in March or April 2005,
is direct evidence of age discrimination because the district court failed to make a
factual finding about whether Triplett’s testimony about Dunfee’s alleged statement
was credible, and if so, whether the statement specifically pertained to the selection
committee’s March 4, 2005 decision to select Evans. Because this was a bench trial,
the district court was required to “find the facts specially and state separately its
conclusions of law.” Darst-Webbe Tenant Ass’n Bd. v. St. Louis Hous. Auth., 339
F.3d 702, 711 (8th Cir. 2003) (quoting Fed. R. Civ. P. 52(a)). Although we recognize
that a district court need not specifically decide each and every disputed fact, see
American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859, 863
(8th Cir. 2001), the court must provide sufficient findings of fact to “enable us to
review its decision,” Cody v. Hillard, 139 F.3d 1197, 1200 (8th Cir. 1998); see also
Duffie v. Deere & Co., 111 F.3d 70, 73 (8th Cir. 1997). Furthermore, “[w]e may not
make these findings of fact or exercise discretion in the district court’s stead.” Cody,
139 F.3d at 1200. But see Boatmen’s First Nat’l Bank of Kan. City v. Kan. Pub.
Employees Ret. Sys., 57 F.3d 638, 640 n.5 (8th Cir. 1995) (holding that we may
proceed with our review in the absence of complete fact findings where “the record
itself sufficiently informs the court of the basis for the trial court’s decision on the
material issues” (internal quotation omitted)).

      At trial, Karen Triplett gave the following testimony concerning the alleged
statement by Dunfee, a member of the selection committee, at a retirement party in
March or April 2005:

      King’s Counsel:      Okay. And can you tell me during that course of
                           time [at the retirement party], did you speak to Mr.
                           Dunfee at all about the situation in Le Mars?

      Triplett:            Yes, I did. Because I knew, from my understanding,
                           it had been a strained relationship over there and

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                           stuff. And I approached him and I said I heard that
                           through the hirings and everything, it was kind of
                           strained in the Le Mars agency over there.

      King’s Counsel:      And how did Mr. Dunfee respond?

      Triplett:            He told me that he was doing what was expected of
                           the area directors—well, they were district directors
                           at the time. He was doing what was expected of
                           them because it was Dr. Dan’s philosophy to hire
                           younger[,] educated people to fill our positions.

      ....

      USDA’s Counsel: Okay. And Mr. Dunfee basically, offhand remark at
                      a cocktail party, says Mr. Brown’s philosophy,
                      because he was from education, was to hire young[,]
                      educated people, correct?

      Triplett:            Yes, he did.

      The district court did not mention Triplett’s testimony regarding Dunfee’s
statement at the retirement party in the recitation of its findings of fact or in its
analysis of King’s alleged direct evidence. The court’s omission of this statement
stands in stark contrast to its thorough recitation and analysis of the other three
statements by Brown and Dunfee alleged by King to be direct evidence. The court’s
omission is particularly significant because the court noted that it would have found
any “statements made after the hiring decision was implemented, explaining why the
decision maker chose one candidate over another” to be relevant if such evidence had
been presented. At least one reasonable interpretation of Triplett’s testimony, if
accepted as true, fits the court’s criterion because it shows that Dunfee’s statement in
March or April 2005 was made shortly after the selection committee’s March 4, 2005
decision and it arguably demonstrated discriminatory animus in the decision making
process.


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        Because our de novo review is hindered without a finding of fact from the
district court concerning Triplett’s testimony about Dunfee’s statement, we conclude
that we must remand to allow the district court to make the requisite finding in the
first instance. See Cody, 139 F.3d at 1200 (“[W]e may remand . . . for findings and
conclusions if our review would be hindered without them.”). We do not attempt to
find this material fact ourselves based on our review of the record because the district
court was in a better position to assess the credibility and context of Triplett’s
testimony. See Boatmen’s First Nat’l Bank of Kan. City, 57 F.3d at 640 n.5.

      B. Indirect Evidence

       Under the McDonnell Douglas burden-shifting framework, once a plaintiff
establishes a prima facie case of discrimination, the “burden of production then shifts
to the employer to articulate a legitimate, non-discriminatory reason” for its
employment action. Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th Cir.
2006). The burden then shifts back to the plaintiff to “demonstrate by a
preponderance of the evidence that the stated non-discriminatory rationale was a mere
pretext for discrimination.” Id. at 435. Because both parties stipulate that King
established a prima facie case of age discrimination, we need only review the district
court’s decision as to the validity of the USDA’s proffered legitimate, non-
discriminatory reasons and whether its reasons were pretexts for age discrimination.

       King argues that the district court clearly erred in finding that the USDA
articulated legitimate, non-discriminatory reasons for selecting Evans for the specialist
position. We disagree. At trial, the USDA produced testimony from selection
committee members showing that the committee chose Evans based on her
communication and computer skills, positive attitude, familiarity with the rural
development section’s loan-writing process, and her undergraduate and graduate
degrees. The district court accepted this testimony as credible and found that the
USDA had articulated legitimate, non-discriminatory reasons for selecting Evans over

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King. Although King produced trial testimony that conflicted with the USDA’s
evidence, we may not choose between two permissible views of the evidence; our
review of this issue is for clear error only. See Richardson, 448 F.3d at 1052.
Because substantial evidence supports a finding that the USDA articulated legitimate,
non-discriminatory reasons under McDonnell Douglas, we find that the district court
did not clearly err.

        King also argues that the district court clearly erred in finding that the USDA’s
non-discriminatory reasons were not pretexts for age discrimination. See Rothmeier
v. Inv. Advisers, Inc., 85 F.3d 1328, 1335 n.9 (8th Cir. 1996) (“After a bench trial, a
trial court’s finding of pretext-for-age-discrimination is reviewable for clear error.”).
We cannot, however, determine whether the court’s finding was clearly erroneous
because the district court failed to make a finding of fact concerning Triplett’s
testimony regarding Dunfee’s alleged statement to her at a retirement party in March
or April 2005. This statement is one of the statements that King alleged exhibited the
committee’s preference for younger employees and demonstrated pretext. Because
the district court’s finding on this fact could affect its consideration of the pretext
issue, we conclude that our review is hindered and remand is appropriate. See Cody,
139 F.3d at 1200.

III.   CONCLUSION

       For the foregoing reasons, we remand for further proceedings not inconsistent
with this opinion.

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