                                                                     PUBLISH


                  IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE ELEVENTH CIRCUIT
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                            ___________________________        09/01/99
                                                           THOMAS K. KAHN
                                    No. 98-6690                 CLERK
                           ___________________________
                          D.C. Docket No. CV 97-H-1134-NE


RAYMOND MITCHELL,
                                                          Plaintiff - Appellant,

                                            versus

USBI COMPANY,
                                                 Defendant - Appellee.
                           ____________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                          ____________________________
                                 (September 1, 1999)


Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.

PER CURIAM:

_________________________
*Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting
by designation.

       Plaintiff Raymond Mitchell appeals the district court’s grant of summary

judgment in favor of defendant USBI on his claim that USBI terminated his
employment because of his age in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Mitchell contends that he

stated a prima facie case of age discrimination and that he presented sufficient

evidence for a reasonable jury to conclude that USBI’s proffered reasons for

terminating his employment were pretextual. For the reasons set forth below, we

affirm the district court.

                   I. FACTS AND PROCEDURAL HISTORY

       On July 21, 1981, Mitchell began working for USBI at its Huntsville,

Alabama, facility. In 1985, Mitchell transferred to the Engineering Department,

where he was classified as a “Senior Systems Engineer.” His duties, which

included updating certain documents, required some technical knowledge.

       In 1991 and 1992, USBI laid off a total of 250 employees from its Huntsville

workforce. In October 1993, USBI informed Don Reed, the head of the

Engineering Department and the Vice President for Engineering, that he would

have to eliminate 46 or 47 positions from the Engineering Department, because

NASA had canceled a USBI program known as the “ASRB program.” Because

many Huntsville employees worked on ASRB projects on a part-time basis, the

total number of Engineering Department layoffs represented a compilation of all




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employee hours spent on ASRB projects. USBI’s written layoff policy mandated

that employees who worked on the ASRB program be laid off first.

      Reed told his subordinates to prepare a department-wide list of potential

layoff prospects. After compiling this list, the Engineering Department managers

worked with the Human Resources Department to determine whether any of the

layoff prospects were entitled to “bump” other employees. Under USBI’s layoff

policy, a more senior employee slated for layoff could bump a less senior

employee in the same job classification or job family, if the more senior employee

possessed the requisite qualifications to perform the less senior employee’s job.

The Engineering Department managers prepared a written justification for each

decision to retain a less senior employee.

      Mitchell’s supervisor, Lou Trivett, submitted a list of nine or ten candidates

for layoff to his boss, Phil Taylor. Mitchell was one of the layoff prospects,

because Trivett and his two section chiefs determined that Mitchell’s job functions

would either be eliminated by the loss of the ASRB program or could be absorbed

by other employees. USBI then determined that Mitchell did not possess the

requisite qualifications to bump any of the 20 less senior employees who worked in

his job classification or job family. Mitchell contends that he was qualified to fill

at least some of those positions.


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      There is some dispute as to whether Mitchell’s performance evaluations

played a role in the bumping process. Ed Liverett, Mitchell’s former supervisor,

admits that he gave Mitchell lower performance evaluations in 1989, 1990, and

1991, because of Mitchell’s age. Liverett explained that he gave higher

performance evaluations to younger employees in order to increase their salaries

and encourage them to remain with USBI. Liverett did not prepare Mitchell’s

1992 performance evaluation, however, which was the last evaluation before the

1993 reduction-in-force. Although USBI eventually decided not to use the

performance evaluations in assessing whether less senior employees should be

“bumped,” four of the justifications relating to Mitchell did mention some of his

performance evaluations without identifying their dates.

      On November 5, 1993, Mitchell and the other employees on the final list

were informed of their terminations. At the time of his termination, Mitchell was

57 years old. After pursuing all three steps of the employee appeals process

without success, Mitchell filed an EEOC charge alleging age discrimination. He

then sued USBI, and the district court granted summary judgment against him.

                         II. STANDARD OF REVIEW

      We review a grant of summary judgment de novo, applying the same

standard as the district court. See Standard v. A.B.E.L. Services, Inc., 161 F.3d


                                         4
1318, 1326 (1998), reh’g and reh’g en banc denied, 172 F.3d 884 (11th Cir. 1999).

Summary judgment is appropriate where, after viewing the evidence in the light

most favorable to the non-moving party, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. See id.

                                III. DISCUSSION

      In order to state a prima facie case of age discrimination involving a

reduction-in-force, a plaintiff must demonstrate that: (1) he was a member of the

age group protected by the ADEA and was adversely affected by an employment

decision; (2) he was qualified for his current position or to assume another position

at the time of discharge; and (3) there is evidence from which a reasonable

factfinder could conclude that the employer intended to discriminate on the basis of

age in making its employment decision. See Benson v. Tocco, Inc., 113 F.3d

1203, 1208 (11th Cir. 1997). If the plaintiff satisfies this burden, the employer then

must offer a legitimate, non-discriminatory reason for the employment action. See

Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 851 (11th Cir. 1997). If the

employer does so, the plaintiff bears the ultimate burden of demonstrating that the

employer’s proffered reasons are a pretext for discrimination. See id.; Watkins v.

Svedrup, 153 F.3d 1308, 1314 (11th Cir. 1998).




                                          5
        The district court assumed that Mitchell had presented a prima facie case of

age discrimination, but ruled that he had failed to offer any evidence that USBI’s

legitimate, non-discriminatory reasons for its employment decision were

pretextual. The court found that USBI had engaged in a detailed process of

identifying candidates for layoff and explained why Mitchell could not replace 20

less senior employees, with each written justification citing his lack of specific

qualifications. On appeal, Mitchell contends that the district court erred because he

offered sufficient evidence for a reasonable factfinder to conclude that USBI’s

proffered reasons were pretextual. We address each of Mitchell’s arguments in

turn.

        First, Mitchell argues that USBI’s proffered reason for not allowing him to

bump less senior employees -- that he was not qualified for any of their positions --

was pretextual, because several witnesses opined that he was qualified. None of

these witnesses, however, were actual decision makers in the layoff process. Four

were co-workers of Mitchell, and one was a former supervisor who stated only that

Mitchell could have become qualified with proper training. This Court repeatedly

has stated that it will not second-guess a company’s legitimate assessment of

whether an employee is qualified for a particular position. See Elrod v. Sears,

Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (noting that “[f]ederal


                                           6
courts do not sit as a super-personnel department that reexamines an entity’s

business decisions” and that the key inquiry is “whether the employer gave an

honest explanation of its behavior”) (citations and internal quotations omitted);

Smith v. Horner, 839 F.2d 1530, 1538 (11th Cir. 1988) (“If an employer selects the

person it believes is best qualified, an argument of pretext ordinarily will

fail.”)(citations and internal quotations omitted).

      Second, Mitchell argues that comments by various USBI employees

demonstrate a corporate culture conducive to age discrimination. He cites a

number of comments by a manager named Frank Batty, although he admits that

Batty did not participate in the decision to terminate his employment. He also cites

another manager’s suggestion that the layoffs were aimed at the employees who

were more secure and did not have young children in school, although he concedes

that this manager also was not a decisionmaker. Nevertheless, Mitchell argues

that, taken together, these comments constitute circumstantial evidence of

discrimination. In several age discrimination cases, however, this court has

explained that comments by non-decisionmakers do not raise an inference of

discrimination, especially if those comments are ambiguous. See Standard, 161

F.3d at 1329-30 (statement by non-decisionmaker that “older people have more go

wrong” was not probative of discriminatory intent); Mauter v. Hardy Corp., 825


                                           7
F.2d 1554, 1558 (11th Cir. 1987) (statement by non-decisionmaker that “[t]he

Hardy Corporation was going to weed out the old ones” did not raise a genuine

issue of material fact regarding discriminatory intent); Barnes v. Southwest Forest

Industries, Inc., 814 F.2d 607, 610-11 (11th Cir. 1987) (statement by decisionmaker

that employee could not pass a physical examination “at [his] age,” when weighed

against other evidence, did not raise issue of discriminatory intent).

      Third, Mitchell argues that the district court erred in concluding that his

performance evaluations did not play a role in the bumping process. Mitchell’s

former supervisor has admitted that he gave Mitchell lower performance

evaluations for 1989, 1990, and 1991, because of Mitchell’s age. Several of the

written justifications refer to Mitchell’s performance evaluations, although they do

not specify the dates. Emphasizing the lack of specific dates and the testimony of

Reed and others that they did not use the performance evaluations in the bumping

process, the district court concluded that the tainted performance evaluations did

not play a role in the bumping process. Viewing the evidence in the light most

favorable to Mitchell, however, we must assume that some of the decisionmakers

examined the tainted evaluations.

      Nevertheless, we affirm the district court because the written justifications

indicate that Mitchell lacked specific, objective qualifications for each potential


                                          8
replacement position. Mitchell does not argue that he possessed these

qualifications, and therefore he has failed to raise a genuine issue as to whether

USBI’s proffered reason for not allowing him to bump less senior employees -- his

lack of qualifications -- was pretextual. See St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 515, (1993) (“[A] reason cannot be proved to be ‘a pretext for

discrimination’ unless it is shown both that the reason was false, and that

discrimination was the real reason.”); Clark v. Coats & Clark, Inc., 990 F.2d 1217,

1228 (11th Cir. 1993) (“The burden of proving pretext merges with the plaintiff’s

ultimate burden of proving that age was a determining factor in his discharge.”).

      Fourth, Mitchell argues that USBI failed to follow its stated policy of first

laying off employees who worked on the ASRB program. Even assuming that

USBI did deviate from its policy, this deviation does not raise an inference of

discrimination. Standing alone, deviation from a company policy does not

demonstrate discriminatory animus. See EEOC v. Texas Instruments Inc., 100

F.3d 1173, 1182 (5th Cir. 1996) (deviation from company policy not evidence of

discrimination, absent a nexus between deviation and employee’s protected status);

Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir. 1987) (inaccurate

application of departmental policy not enough to prove discrimination). See also

Berg v. Florida Dep’t of Labor and Employment Security, 163 F.3d 1251, 1255


                                          9
(11th Cir. 1998) (plaintiff failed to support claim of ADA violation by arguing that

state agency had failed to apply its policies correctly, absent showing that policies

were misapplied because of his disability).

      Finally, Mitchell argues that the district court relied too heavily on statistical

evidence indicating that the reduction-in-force did not have a disparate impact on

older employees. While statistical evidence does play a larger role in disparate

impact cases, this court has examined such evidence in disparate treatment cases as

well. See Watkins, 153 F.3d at 1314-15; Maddow, 107 F.3d at 852. Moreover, the

district court also relied upon affidavits and other evidence relating to Mitchell’s

specific situation.

      Thus, we conclude that Mitchell has failed to present sufficient evidence to

rebut USBI’s legitimate, non-discriminatory reasons for laying him off and not

allowing him to bump any less senior employees. Accordingly, we affirm the

district court’s grant of summary judgment in favor of USBI.

      AFFIRMED.




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