                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 03-2332
                                ___________

William Hitt,                        *
                                     *
            Appellant,               *
                                     * Appeal from the United States
      v.                             * District Court for the Eastern
                                     * District of Arkansas.
Harsco Corporation,                  *
                                     *
            Appellee.                *
                                ___________

                         Submitted: November 21, 2003
                             Filed: January 30, 2004
                                 ___________

Before MELLOY, RICHARD S. ARNOLD, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       William Hitt appeals the district court's1 grant of summary judgment for
defendant Harsco Corporation ("Harsco") dismissing Hitt's claim under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. Reviewing the
district court's decision de novo, we affirm.


      1
         The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
                                         I.

       This dispute arises from Harsco's termination of Hitt's employment based on
what Harsco asserts was a violation of company rules. Harsco says Hitt was fired for
violating a rule against "aggressing or becoming involved in fighting." Hitt alleges
that he was really fired because of his age, and that the company's explanation is a
mere pretext.

       Between 1992 and 2000, Hitt was employed by Harsco at its industrial support
plant in Armorel, Arkansas. Hitt's responsibilities included operating a road grader,
backhoe, pot carrier and bulldozer. When he was terminated in August 2000, Hitt
was 65 years of age.

      Hitt's son-in-law, Mark Odom, age 34, also worked at the Harsco plant. As of
August 2000, tension had arisen between Hitt and Odom. Hitt believed that his
grandson -- Odom's son -- had an injury to his hand as a result of abuse by a third
party. Hitt had been trying to get custody of the child, and Odom refused even to
allow contact between Hitt and his grandson.

       On the morning of August 23, 2000, there was an altercation between Hitt and
Odom at the Harsco plant. Hitt sought out Odom in the employee break room. With
a raised voice, Hitt asked Odom what was wrong with the child's hand. Odom replied
that he did not know. Hitt then said "yeah, you do know. You know what the
problem is with his hand." Witnesses reported that Hitt told Odom that he would
"kick his ass" because of the dispute over Hitt's grandson. As the discussion became
heated, Odom said, "that's something we need to talk about outside."

       Hitt followed Odom outside, while a group of employees gathered. According
to Hitt, they "probably" thought they were going to see a fight. Witnesses later
reported to Harsco supervisors that Hitt cursed and attempted to punch Odom, and
that Odom retaliated by kicking Hitt.

                                        -2-
       Odom left the plant immediately after the incident. Hitt went to a plant
foreman, Paul Smith, to tell him what happened. According to Hitt, Smith replied by
saying, "Old man, you are too old to be fighting." Hitt claimed that he wasn't
fighting, but that he was only asking about his grandchild, and that Odom kicked him.

       At the end of the day, Harsco suspended both Hitt and Odom. Hitt's supervisor,
Rodney Barnes, and John Schmalzried, the regional business director, conducted an
investigation of the incident by interviewing eyewitnesses.

       Schmalzried reported the results of the investigation to Robert Imhof, Harsco's
Director of Industrial Relations. Imhof, whose office was in Pennsylvania, had the
ultimate authority to hire and discharge Harsco employees. Schmalzried told Imhof
that two employees were involved in a "heated discussion" in the breakroom that had
then moved outside. He reported that eyewitnesses said one employee had thrown
punches and the other employee had kicked back in defense or retaliation.
Schmalzreid did not inform Imhof of the identities of the employees, or of their ages,
when he made this report.

       Imhof decided that both men should be terminated pursuant to Harsco's General
Conduct rule 6: "An employee guilty of horseplay, agitating, aggressing or becoming
involved in fighting will be subject to disciplinary action, including discharge." No
one was hired to replace Hitt. After his termination, Hitt's responsibilities were
redistributed among Harsco's remaining employees.

       Approximately 30 days after Hitt's termination, Harsco underwent a reduction-
in-force. Hitt alleges that all members of his former crew over age 50 were laid-off
during the downsizing. Layoffs were decided by plant supervisors in a series of
meetings that occurred over a number of days leading up to the workforce reduction.

      At some point following Hitt's termination, Hitt's wife, Brenda, contacted
Imhof's office to complain about Hitt's termination. In response to these calls, Imhof

                                         -3-
visited the Hitts at their home. Hitt alleges when he related his version of the
altercation with Odom, Imhof replied by saying he had been "misinformed" when he
decided to terminate Hitt.

       Hitt filed a charge of age discrimination with the Equal Employment
Opportunity Commission ("EEOC"). The EEOC concluded that Hitt was terminated
because of his involvement in a fight. After being issued a right to sue letter from the
EEOC, Hitt filed the instant action alleging that Harsco fired him in violation of the
ADEA. The district court granted summary judgment on the ground that Hitt failed
to present evidence sufficient to create a reasonable inference that Harsco unlawfully
discriminated on the basis of age.

                                           II.

       The district court should enter summary judgment when there is no genuine
issue as to any material fact and the moving party is entitled to a judgment as a matter
of law. Fed. R. Civ. Proc. 56(c). The non-moving party may not rest upon mere
allegations or denials of the moving party's pleading, but must set forth specific facts
showing that there is a genuine issue for trial. Fed. R. Civ. Proc. 56(e). "Only
disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Like the district court, we give the non-moving party
the benefit of reasonable inferences that may be drawn without resorting to
speculation.

       The ADEA makes it unlawful for an employer to discriminate against an
employee on the basis of the employee's age if the employee is 40 years of age or
older. Given the evidence in this case, the parties agree that Hitt's claims are properly
analyzed under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).


                                          -4-
       Under that analysis, the plaintiff must first establish a prima facie case that the
defendant violated the statute. To make such a case under the ADEA, the plaintiff
must ordinarily show that: (1) he is a member of a protected age group; (2) he was
performing his job at a level that met his employer's legitimate expectations; (3) he
was discharged; and (4) he was replaced by a younger worker. E.g., Ziegler v.
Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998). Where, as
here, the plaintiff's responsibilities were not reassigned to a specific individual, we
have said the plaintiff must satisfy the fourth element of the prima facie case by
showing "age was a factor in the employer's decision to terminate." Yates v. Rexton,
Inc., 267 F.3d 793, 799 (8th Cir. 2001); see also Reynolds v. Land O'Lakes, Inc., 112
F.3d 358, 361 (8th Cir. 1997).

       If an age discrimination plaintiff has established a prima facie case, the burden
shifts to the defendant to "'produc[e] evidence that the plaintiff was rejected, or
someone else was preferred, for a legitimate, nondiscriminatory reason.'" Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (quoting Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the employer meets its burden
to produce such evidence, then the plaintiff must "'prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.'" Reeves, 530 U.S. at 143 (quoting
Burdine, 450 U.S. at 253).

       In this case, Harsco joined issue early by volunteering that Hitt was fired for
a legitimate, nondiscriminatory reason: He was fighting. Whether Hitt can satisfy
the fourth element of the prima facie case and whether Hitt can establish that Harsco's
stated reasons were a pretext turn, respectively, on whether Hitt can prove that age
was a factor in, or the true reason for, the decision to terminate. We agree with the
district court that there is insufficient proof of age discrimination to survive Harsco's
motion for summary judgment.




                                           -5-
       Hitt urges that there is a genuine issue of fact as to whether he was actually
fighting with Odom during the incident that led to termination. He asserts that Odom
kicked him, but that he never engaged in fighting or impermissible aggressive
behavior. Hitt relies on Imhof's alleged admission that he was "misinformed" about
the incident when he made the decision to terminate Hitt for fighting. The difficulty
with this contention is that it focuses on the wrong question. The key question in a
discrimination case like this one is not whether Hitt was truly fighting, but whether
the employer really believed that he was fighting, such that the termination was based
on a non-discriminatory reason. Scroggins v. Univ. of Minnesota, 221 F.3d 1042,
1045 (8th Cir. 2000). It is undisputed that eyewitnesses reported to Harsco
supervisors that Hitt threatened force against Odom in the break room, and then threw
a punch at Odom when the two moved outside. These undisputed facts provided
Harsco with a legitimate, non-discriminatory basis for termination, even if Hitt could
now show that the witnesses were wrong in what they reported about the altercation.

       Hitt argues that Harsco's explanation for his termination was a mere pretext for
age discrimination, because he was disciplined more harshly than younger employees
who engaged in similar conduct. Like the district court, we find the evidence of
alleged disparate treatment unpersuasive. Hitt submitted evidence that in 1998, two
Harsco employees were treated more leniently than he, because they were merely
suspended for fighting. But even assuming the 1998 incident and Hitt's altercation
were comparable (Harsco says they were not), one of the two employees who
received this alleged leniency was aged 51, and thus a member of the protected class
under the ADEA. Harsco, on the other hand, submitted undisputed evidence that
younger employees were terminated for violating the company rule breached by Hitt.
One 35-year-old employee was terminated for fighting in a previous incident, and
Odom was terminated at age 34 for the altercation involving Hitt. If anything, this
evidence tends to demonstrate that Harsco applies the rule against fighting without
regard to age: A protected employee was suspended in one fighting incident; a
younger employee was terminated in another; and in Hitt's own case, the company
terminated both a younger employee and a protected employee. The evidence does
not support Hitt's claim that age motivated his termination.

                                         -6-
       Hitt also submits that he was called "old man" by Smith, the foreman, and
Barnes, the supervisor. Hitt testified that Barnes said on the work site that "you are
too old to be out there," and that Barnes made comments referring to Hitt as "old
man" with some regularity. He asserts that on the date of the altercation with Odom,
Smith told Hitt, "Old man, you are too old to be fighting." From these submissions,
Hitt asks us to find that a reasonable jury could infer his termination was based on
age.

      We are not persuaded that these remarks support an inference of age
discrimination. While we have noted that "stray remarks" regarding age may be
relevant to establishing a prima facie case or pretext under some circumstances, such
comments are not persuasive evidence of motive when the remarks are made by
persons other than a decisionmaker. Girten v. McRentals, Inc., 337 F.3d 979, 983
(8th Cir. 2003). Hitt has not presented facts to dispute Harsco's evidence that Robert
Imhof was the person who decided to terminate Hitt and Odom, and that he did so
without knowing their ages. Smith and Barnes were not decisionmakers; they did not
even communicate with Imhof about the incident. Although Barnes participated with
Schmalzreid, the regional business manager, in the company's investigation of the
incident, there is no dispute that the report to Imhof about the altercation was based
upon the statements of independent witnesses with no age-related animus, not upon
Barnes's own rendition of events. Accordingly, even if the remarks cited by Hitt
could be taken as evidence of motive by Smith or Barnes to discharge persons based
on age, they do not support an inference that Imhof's decision to terminate Hitt was
so motivated.

       Hitt next contends that the decision to terminate him was influenced by the
prospect of impending layoffs at Harsco. He argues that Harsco knew it would be
conducting a reduction-in-force in the near future, so it used the Hitt-Odom dispute
as a pretext to maximize the number of older employees terminated in the reduction.
Hitt also asserts that Harsco disregarded its own workforce reduction policy when it
made its decisions about layoffs, presumably so that it could base the decisions on
age instead.

                                         -7-
       We are not convinced that Hitt has demonstrated a sufficient connection
between the reduction-in-force and his termination to warrant a reasonable inference
of age discrimination. Hitt has not cited, and our independent review has not located,
evidence in the record that as of the date when Hitt was terminated, Harsco already
had determined to implement the reduction-in-force. Without such evidence, it would
be speculation to find that layoffs occurring in September influenced the termination
of an employee in August.

      We doubt, moreover, whether a pre-existing plan to reduce the workforce
would tend to undermine Harsco's evidence that Hitt was fired for fighting, and not
because of his age. Whether or not there is a basis to find that Harsco's decisions
during the reduction-in-force in September were motivated by age, it remains
undisputed that Harsco had a legitimate non-discriminatory basis for terminating Hitt.
And it is undisputed that both employees involved in the altercation, including the
younger employee, were discharged. Perhaps Harsco decided to be tough on fighters
because the company had to reduce its workforce, but rigorous enforcement of
company rules against all violators does not tend to prove age discrimination.

      The judgment of the district court is affirmed.




                                         -8-
