Andy Keating v. Harsco Corp. , 109 F. App'x 835 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1219
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Andy Keating, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Harsco Corporation, also known as *
Heckett Slag Products, also known as * [UNPUBLISHED]
Heckett Multiserve, *
*
Appellee. *
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Submitted: September 15, 2004
Filed: September 20, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Andy Keating appeals the district court’s1 adverse grant of summary judgment
in his Age Discrimination in Employment Act (ADEA) lawsuit. Keating sued
Harsco Corporation (Harsco) after he was terminated at age 53 as part of a reduction
in force (RIF). Having carefully reviewed the record, we affirm. See Evers v. Alliant
Techsystems, Inc., 241 F.3d 948, 953 (8th Cir. 2001) (standard of review; elements
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
of disparate-impact claim); Doerhoff v. McDonnell Douglas Corp., 171 F.3d 1177,
1180 (8th Cir. 1999) (elements of age-discrimination case in RIF context).
We conclude that Keating failed to satisfy the fourth element of an age-
discrimination RIF case, because he did not produce some added evidence showing
that age was a factor in his termination. We agree with the district court that the
supervisors’ consideration of employee versatility was not inconsistent with Harsco’s
RIF policy, and even if the emphasis on versatility was a violation of policy,
Keating’s evidence did not link any such violation to age discrimination. Cf. EEOC
v. Tex. Instruments Inc., 100 F.3d 1173, 1182-83 (5th Cir. 1996) (conscious departure
from company’s seniority-protection policy for RIF did not create inference of age
discrimination where there was no clear nexus to discrimination). Further, erroneous
assessments of Keating’s versatility or of his capabilities in general do not show that
the decision to terminate him as part of the RIF was age-based. See Evers, 241 F.3d
at 957 (it is not unlawful for company to make personnel decisions based on
erroneous evaluations); Brown v. McDonnell Douglas Corp., 113 F.3d 139, 142 (8th
Cir. 1997) (in RIF context, record of positive performance reviews is generally not
persuasive evidence of age bias as even capable employees are released during
downsizing).
As to disparate impact, Keating presented nothing below (nor does he now)
showing that the four day-crew employees who were terminated as part of the RIF
should be considered separately from the other seven employees terminated during
the RIF. Cf. Evers, 241 F.3d at 958 (to defeat summary judgment, plaintiff must
present affirmative evidence rather than simply contend jury might disbelieve
defendants’ evidence); EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 950-51
(8th Cir. 1999) (declining to consider disparate-impact claim on behalf of subgroup
of persons age 55 or older; if such claim were cognizable, plaintiff could bring it even
when statistical evidence indicated RIF criteria had favorable impact upon entire
protected group of employees age 40 and older). Harsco’s unrebutted statistical
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information supported the district court’s conclusion that there was no jury question
on whether the RIF had caused Keating to be terminated based on his age. See id. at
952 (important statistic to consider in RIF context is difference between percentage
of older employees in work force before and after RIF).
Finally, even assuming a younger and less senior employee assumed most of
Keating’s duties after the RIF, this is not enough to defeat summary judgment where
there was no other evidence showing age was a factor in the RIF termination
decisions. Cf. Fast v. S. Union Co., 149 F.3d 885, 892 (8th Cir. 1998) (hiring of 33-
year-old to assume many of same job duties as plaintiff was not alone sufficient for
prima facie case in RIF context). Keating’s remaining arguments provide no basis
for reversal. See Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004) (only
disputes over facts possibly affecting outcome of suit under governing law will
properly preclude entry of summary judgment).
The judgment is affirmed.
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