                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 05-1558
                               ________________

George Roger Lee,                        *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the Western
                                         *      District of Arkansas.
Rheem Manufacturing Company,             *
                                         *
             Appellee.                   *


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                          Submitted: October 12, 2005
                              Filed: December 28, 2005
                             ________________

Before LOKEN, Chief Judge, BENTON and GRUENDER, Circuit Judges.
                            ________________

GRUENDER, Circuit Judge.

      George Roger Lee appeals the decision of the district court1 granting summary
judgment to Rheem Manufacturing Company (“Rheem”) on Lee’s claim under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. For the
reasons stated below, we affirm.



      1
       The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
I. BACKGROUND

       Rheem operates a manufacturing plant in Fort Smith, Arkansas. The plant is
part of Rheem’s Air Conditioning Division, and the administrative offices of that
division are attached to the plant. Lee began working for Rheem at this facility in
1969 as Assistant Personnel Director in the human resources department and was
promoted to Human Resources Manager in 1973. As Human Resources Manager,
Lee’s responsibilities included supervising plant personnel, formulating and
implementing personnel policies and procedures, acting as Rheem’s chief spokesman
during contract negotiations with Local 7893 of the United Steelworkers of America
(“Local 7893”), representing Rheem in labor arbitrations, and approving all salaried
promotions, demotions, and merit increases.

      In 1995 or early 1996, Lee was diagnosed with chronic fatigue syndrome. After
Lee’s physician determined that he could no longer perform the duties of Human
Resources Manager, Lee voluntarily retired from Rheem on May 31, 1996. Lee
elected to receive his Rheem-sponsored pension and profit-sharing accounts in a lump
sum and subsequently lost a substantial amount of that money in the stock market.
Upon Lee’s retirement, Tony Johnson began performing the duties of Human
Resources Manager and was officially given the title in 1999. Johnson had been hired
by Lee in 1977 and for 19 years worked as Lee’s subordinate in three positions at
Rheem, including Labor Relations Administrator.

       After Lee retired from Rheem, the relationship between Rheem and Local 7893
grew increasingly tense for several reasons. In 1998, for the first time since at least
1977, union members at the plant went on strike for one week during contract
negotiations. The tension was also due in part to the election of Rheem employee
James Steele as President of Local 7893 in 2001 because Steele had a confrontational
attitude toward Rheem and the number of grievances filed by the union dramatically
increased during his tenure. Furthermore, the union resisted changes that occurred

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when Rheem began implementing the “lean manufacturing” business model at the
Fort Smith plant in 2001. For example, the model required employees to perform a
larger number of production tasks and to rotate between tasks within their
departments.

      In October 2002, a position in the human resources department entitled Labor
Relations Administrator became vacant when an employee passed away unexpectedly.
Rheem recruited for this position by means of an advertisement placed in three
newspapers, which described the qualifications for the job as follows:

      The successful candidate will have a bachelor’s degree in a business-
      related field with at least 5 years experience in labor relations. Proven
      experience in labor agreement interpretation, grievance handling,
      discipline, arbitration preparation, negotiations, and human resources
      generalist knowledge is required. Excellent interpersonal skills required.


The Labor Relations Administrator was responsible for investigating grievances filed
by Local 7893, representing Rheem in meetings with Local 7893 regarding the
grievances, investigating disciplinary incidents involving bargaining-unit employees,
preparing for labor arbitrations, participating in negotiations for new collective
bargaining agreements, and performing other human resource functions assigned by
the Human Resources Manager and others. When Lee held the position of Human
Resources Manager, he supervised the Labor Relations Administrators and performed
many of the tasks that in 2002 were accomplished by the Labor Relations
Administrators.

       Twelve individuals expressed interest in the Labor Relations Administrator
position–nine external applicants, including Lee and Donald W. Raines, and three
internal applicants. Before mailing his resume and cover letter, Lee contacted Tony
Johnson, William S. Ostan, the corporate Vice President of Human Resources in New
York, and J.R. Jones, the President of the Air Conditioning Division, to ask if they had

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any objections to Lee applying for the position. They each responded that they did
not have a problem with Lee’s applying for the position. A three-person search
committee composed of Johnson, Gary Hale, the Air Conditioning Division Vice
President of Human Resources, and Tom Wise, the Fort Smith Plant Manager,
interviewed the applicants and unanimously recommended Raines to Ostan. Ostan
independently interviewed Raines and approved the selection. At the time, Lee was
63 years old and Raines was 39.

       Lee filed suit against Rheem under the ADEA based on Rheem failing to hire
Lee for the Labor Relations Administrator position. The district court granted
Rheem’s motion for summary judgment, assuming that Lee presented direct evidence
of age discrimination and holding that Rheem provided sufficient evidence that it
would have made the same decision absent consideration of Lee’s age. The district
court also determined, assuming that Lee established a prima facie case of age
discrimination, that Lee failed to introduce evidence creating a genuine issue of
material fact as to whether Rheem’s legitimate, nondiscriminatory reasons for not
hiring him were pretextual. Lee appeals the grant of summary judgment, arguing that
he presented direct evidence of discrimination, or in the alternative, that he came
forward with sufficient evidence to create a genuine issue of material fact as to
whether Rheem’s asserted reasons for the employment decision were pretextual.

II. DISCUSSION

       We review the district court’s grant of summary judgment to Rheem de novo.
Logan v. Liberty Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005). Summary
judgment is appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, shows that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986).

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       The ADEA prohibits a covered employer from failing or refusing to hire an
individual who is at least forty years old because of the individual’s age. 29 U.S.C.
§§ 623(a)(1), 631(a). An individual claiming age discrimination may survive the
employer’s motion for summary judgment in one of two ways. First, the individual
can present direct evidence of discrimination, which is “evidence showing a specific
link between the alleged 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.” Russell v. City of Kansas City, Missouri,
414 F.3d 863, 866 (8th Cir. 2005) (quoting Griffith v. City of Des Moines, 387 F.3d
733, 736 (8th Cir. 2004)); see, e.g., E.E.O.C. v. Liberal R-II School Dist., 314 F.3d
920, 924-25 (8th Cir. 2002) (holding that a bus driver’s allegation that the
superintendent told him the school board felt he “was too old to drive a bus” and the
superintendent’s comment to the unemployment board that plaintiff was “now 70 1/2
years of age” constituted direct evidence of age discrimination); Kneibert v. Thomson
Newspapers, Mich. Inc., 129 F.3d 444, 452 (8th Cir. 1997) (holding that the statement
of a decisionmaker to a terminated editor that he “had no use for a senior editor” but
rather needed “three young editors” for the news department was direct evidence).
The second way to survive summary judgment is by “creating the requisite inference
of unlawful discrimination” through the familiar three-part analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Griffith, 387 F.3d at 736. Lee argues
that he presented sufficient direct and circumstantial evidence to avoid summary
judgment in favor of Rheem.

      A. Direct Evidence

       Lee first argues that the district court erred in granting summary judgment
because certain inquiries and comments made during his interview for the Labor
Relations Administrator position constituted direct evidence of discrimination. We
disagree and hold that none of these statements demonstrate a specific link between
the alleged age-related discriminatory animus and Rheem’s decision not to hire Lee.

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According to Lee, Wise told him during the interview that “things have changed a
lot,” asked Lee if he thought he would be able to “grasp these new processes” in the
plant, and stated that Rheem had to “plan for the future.” Hale made the analogy of
Lee returning to a basketball team during a new season with a new coach and finding
himself on the bench. In addition, both Hale and Wise asked Lee how long he
intended to work if hired.

       Although Lee’s expected years of work is related to his age, “factors other than
age, but which may be correlative with age, do not implicate the prohibited stereotype,
and are thus not prohibited considerations.” Schiltz v. Burlington Northern R.R., 115
F.3d 1407, 1412 (8th Cir. 1997) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
611 (1993)). We have held that the statement by a decisionmaker to an employee
allegedly made while explaining the decision to demote him, “Twenty years is too
long. You should have moved five years ago,” did not constitute direct evidence of
age discrimination. Erickson v. Farmland Indus., Inc., 271 F.3d 718, 725 (8th Cir.
2001). This is because “[t]o amount to direct evidence of age discrimination, there
would have to be evidence that [the employer] was using length of tenure as a proxy
to accomplish age discrimination.” Id. Also in Erickson, the decisionmaker’s
comments that the employee was “stale,” “set in his ways” and “needed a new focus”
did not constitute direct evidence. Id. at 724-25. Similarly, here the interviewers’
comments to Lee regarding changes in the Fort Smith plant express “legitimate
business concerns,” id. at 725, and do not “clearly point[] to the presence of an illegal
motive.” Griffith, 387 F.3d at 736. No reasonable fact-finder could conclude that the
questions and statements posed to Lee are direct evidence that age discrimination
actually motivated Rheem’s decision not to hire Lee.




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      B. Circumstantial Evidence

       Because Lee lacks direct evidence of age discrimination, we analyze his claim
under the burden-shifting analysis of McDonnell Douglas. Like the district court, we
assume that Lee has established a prima facie case of age discrimination and shift the
burden to the employer to articulate a legitimate, nondiscriminatory reason for its
hiring decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000). If the employer proffers such a reason, it then becomes the individual’s
burden to show there is a genuine factual controversy regarding whether the
legitimate, nondiscriminatory reason is a pretext for an intent to discriminate based
on age. Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003).

       Rheem has articulated several legitimate, nondiscriminatory reasons for its
employment decision. Rheem wanted to hire someone who would work for more than
a few years and had the potential to succeed Johnson, who was 56 years old at the
time, as the Human Resources Manager. The search committee believed that Lee’s
goal was not to begin a challenging career and to advance within the company, but to
earn short-term money necessitated by his losses in the stock market. Lee told the
interviewers and other Rheem personnel in writing and in person that he was not
interested in replacing Johnson. Rheem also was concerned about Lee’s health
because he had retired from Rheem in 1996 due to chronic fatigue syndrome and the
Labor Relations Administrator position had become a high stress position with a
greater workload as a result of discord between the union and Rheem. Hale was
disturbed by Lee’s display of poor judgment when Lee called Local 7893 President
Steele to ask if Steele would be able to work with him if Lee was hired as the Labor
Relations Administrator. In addition, Rheem believed that overall Raines was more
qualified than Lee because Raines was interested in a long-term relationship with
Rheem and eventual promotion, was familiar with lean manufacturing principles, had
significant labor relations experience, and was genuinely interested in the job and
opportunities at Rheem.

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       Because Rheem articulated legitimate, nondiscriminatory reasons for its
decision not to hire Lee, the burden shifts back to Lee to present sufficient evidence
to raise a question of material fact as to whether one or more of Rheem’s proffered
reasons is a pretext for age discrimination. Griffith, 387 F.3d at 736-37. Keeping in
mind that “courts do not review the wisdom or fairness of employers’ business
judgments, other than to determine whether they involve intentional unlawful
discrimination,” Peterson v. Scott County, 406 F.3d 515, 523 (8th Cir. 2005), we
conclude that Lee has not met his burden and summary judgment was appropriately
granted to Rheem.

       Lee argues that Rheem’s desire to hire a successor for Johnson was pretextual
because he claims that Rheem did not engage in successorship planning at that level.
However, the record supports Rheem because both Lee himself and Johnson had been
promoted to Human Resources Manager after holding a subordinate position within
the human resources department. Moreover, Lee specifically informed the search
committee that he was not interested in replacing Johnson but would mentor and train
whoever succeeded Johnson in the Human Resources Manager position. Rheem’s
concern that Lee was focused solely on the money and was not genuinely interested
in the work or in promotions within the company also is supported by the record. Lee
made the unusual offer to work as the Labor Relations Administrator for half-salary
for a period of six months and thereafter for full salary only if Rheem was satisfied
with his performance. In one of the interviews, Lee also described his financial
troubles and his lawsuit against a financial advisor.

       Next, Lee contends that Rheem’s concern about his health was pretextual, yet
he previously acknowledged that his health was a legitimate concern. For example,
after his interview, Lee wrote a follow-up letter to Jones, the President of the Air
Conditioning Division, in which Lee stated:



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      It appears that Rheem management has two major concerns about my
      returning to work for Rheem. One is my health, and the other is the need
      for a suitable replacement for Tony should he depart the Company in the
      next few years. These are certainly legitimate concerns that need a
      rational response for me to be a viable candidate for the position.


       Lee also asserts that Rheem’s concern over his contact with Steele was
pretextual because Lee simply wanted to determine if Steele could work with him in
reducing the number of grievances at the plant if Lee was hired as the Labor Relations
Administrator. While this may be true, it does not show that Rheem’s concern was
pretextual. Rheem reasonably viewed Lee’s call to the President of Local 7893 as a
questionable judgment given the changed atmosphere at the plant since Lee’s
retirement due to Rheem’s strained relationship with Local 7893, the implementation
of lean manufacturing, and new leadership of the Air Conditioning Division.

       Finally, Lee contends that Rheem’s desire to hire someone familiar with lean
manufacturing was a pretext because that qualification was not listed in the newspaper
advertisement. However, the advertisement noted that an applicant needed experience
with grievance handling, negotiations and other labor relations matters. In performing
these duties at Rheem, the Labor Relations Administrator would be dealing with Local
7893, which was resisting the implementation of lean manufacturing principles in the
Fort Smith plant. While Lee had no experience with lean manufacturing, Raines
currently was working for a company that utilized those principles. Furthermore,
Raines had labor relations experience and was interested in a long-term career and
promotions at Rheem. Lee himself characterized Raines as “educationally over
qualified for the position.” Although Lee had significant labor relations experience
at Rheem, the search committee took many factors into consideration, and we will not
question the wisdom of Rheem’s decision that Raines was more qualified for the
position. See Thomas v. Runyon, 108 F.3d 957, 960 (8th Cir. 1997) (stating in a Title
VII race discrimination case that “[o]ur determination is limited to whether the
employer gave an honest nondiscriminatory explanation for its actions, rather than to
weigh the wisdom of any particular employment decision”).

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       We conclude that Lee has not established evidence sufficient to raise a triable
issue as to whether Rheem’s nondiscriminatory reasons for not hiring Lee for the
Labor Relations Administrator position were pretext for age discrimination.
Accordingly, the district court properly granted summary judgment.

III. CONCLUSION

      We affirm the grant of summary judgment to Rheem on Lee’s age
discrimination claim.


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