Case Information
*1 Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
____________
JOHN R. GIBSON, Circuit Judge.
Robert L. Miller appeals from the district court’s grant of summary [1] judgment in favor of Citizens Security Mutual Insurance Company on his age discrimination and wrongful discharge claims. [2]
1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. The district court also granted summary judgment in favor of
Citizens Security Group, Inc., Citizens Fund Insurance Company, Insurance Company of Ohio, Scott Broughton, and Spencer Broughton on all of Miller's claims, and in favor of all defendants on Miller's good faith and fair dealing claim and ERISA claim. Miller has failed to discuss these parts of the district court's order, and the district court's decision as to these parties and claims is thus final.
Miller argues that the district court erred in granting summary judgment because there was evidence establishing genuine issues of material fact. We affirm.
Ray Cronk, Citizens' vice-president of claims, hired Miller as an outside insurance claims adjustor for Citizens, and Miller began working on July 10, 1989. Cronk also hired another outside adjustor, Bruce Langseth, who is significantly younger than Miller and began working for Citizens shortly after Miller.
Citizens employed outside adjustors and inside adjustors to handle customer claims for payment on losses insured by Citizens. Citizens initially assigned a claim to an inside adjustor. The inside adjustor would do all the work on a claim that could be done from inside Citizens' home office. If a claim required work that could not be performed from inside the home office, the inside adjustor would contact an outside adjustor. The outside adjustor would perform whatever work outside of the home office that was necessary to resolve the claim. Cronk supervised Citizens' inside and outside adjustors.
At first, Citizens failed to give Miller specific instructions as to how Citizens expected Miller to handle a claim. However, in January 1990, Cronk told Miller that Citizens expected him to meet two requirements on every claim he handled. First, Citizens expected Miller to contact the claimant within twenty-four hours after he received a claim from an inside adjustor. Second, Citizens expected Miller to give the inside adjustor a report on
every claim that was not fully resolved within ten days after it was given to him. After this January 1990 meeting, Miller understood these two requirements and knew that Citizens expected him to meet these requirements on every claim he handled.
Miller, however, failed to comply with Citizens' contact and report requirements on some of the claims he handled after January 1990. Several inside adjustors complained to Cronk about Miller's failure to comply with these requirements. After receiving these complaints, Cronk fired Miller on March 31, 1992. Miller was fifty-eight or fifty-nine years old when Cronk fired him. [3]
Like Miller, Langseth also failed to comply with Citizens' contact and report requirements on some of the claims he handled. Cronk did not fire Langseth.
During Miller's employment with Citizens, Citizens gave him an employee handbook. The handbook states on its first page that it "is not all inclusive, nor is it intended to be a contract."
Miller filed suit against Citizens claiming that Citizens violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994), by firing him because of his age. He also claimed that Citizens' employee handbook created a contract under which Citizens could only fire him for cause and that Citizens wrongfully discharged him because it did not have cause. After both sides conducted discovery, Citizens moved for summary judgment arguing that it fired Miller because of his poor job performance and that its employee handbook did not create a contract.
The district court held that Miller failed to establish a 3 The record is not more specific as to Miller's age.
prima facie case of age discrimination because there was no evidence that Miller's job performance met Citizens' legitimate expectations. The court further held that the employee handbook was not a contract because it specifically stated that it was not intended to be a contract. Due to the lack of evidence showing that Miller's job performance was satisfactory and the absence of a contract to fire Miller only for cause, the district court granted summary judgment in favor of Citizens. Miller appeals.
I.
Miller argues that the district court should not have granted summary judgment on his age discrimination claim because he established a prima facie case of age discrimination.
We review the district court’s grant of summary judgment de novo and
apply the same standards as the district court. See Conner v. Reckitt &
Colman, Inc., 84 F.3d 1100, 1102 (8th Cir. 1996). Summary judgment is
appropriate if there are no genuine issues of material fact and Citizens
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
We view all the evidence in the light most favorable to Miller, and give
Miller the benefit of all reasonable inferences. See Johnson v. Group
Health Plan, Inc.,
age discrimination in dispute is the second, which the district court
articulated as whether Miller was performing his job at a level that met
Citizens' legitimate expectations when Citizens fired him. See Halsell v.
Kimberly-Clark Corp.,
A.
Miller argues that he was qualified for the position of outside
adjuster. He first contends that the district court made an erroneous
articulation of the qualification element of the prima facie case when it
required him to show that he was "performing his job at a level which met
[Citizens'] legitimate expectations." He cites Davenport v. Riverview
Gardens School District,
The district court did not err in articulating this element as
performance of the job at a level that met the employer's legitimate
expectations. McDonnell Douglas makes plain that the facts in Title VII
cases will vary, and that the prima facie proof required is "not
necessarily applicable in every respect to differing factual situations."
B.
We have affirmed summary judgments on the grounds that a plaintiff
has failed to present a prima facie case, which was the holding of the
district court in this case. See Lang v. Star Herald,
None of Miller's evidence creates a genuine issue of material fact as to whether he was meeting the legitimate expectations of Citizens when Citizens fired him. Miller stated in his affidavit that his job performance did meet Citizens' expectations. A conclusory statement in an affidavit, however, cannot create a genuine issue of material fact which precludes summary judgment. See Jackson v. Anchor Packing Co., 994 F.2d 1295, 1303-04 (8th Cir. 1993).
Miller also points to three evaluations of his work at Citizens which show that he was performing satisfactorily in his job. These evaluations date from April 18, 1990, July 26, 1990, and January 16, 1991. We conclude that these evaluations are not evidence that Miller was meeting Citizens' legitimate expectations when Citizens fired him because they are too far removed in time from the date of Miller's discharge, March 31, 1992. Miller has
not presented any evidence that he was meeting Citizens' legitimate expectations at any time during the year before he was fired.
Miller states that Citizens only told him once that his job performance was unsatisfactory. Miller argues that this is evidence that he was meeting Citizens' legitimate expectations. We reject Miller's argument; the fact that Citizens only told him once that his job performance was unsatisfactory is not evidence that his job performance was satisfactory. [4]
We conclude that Miller failed to establish the second element of his
prima facie case, and thereby failed to make a prima facie case. Except
for his own conclusory statement, Miller has presented no evidence that his
job performance met Citizens' legitimate expectations at the time of his
discharge. The district court did not err in so holding. See Harlston,
II.
If the case proceeds beyond the prima facie case to articulation of
a legitimate nondiscriminatory reason, and possibly thence to pretext, we
reach issues that this Court en banc has recently discussed in detail in
Ryther v. KARE 11,
4
Miller asserts that Cronk did not mention his job performance
when Cronk fired him. Instead, Cronk merely stated that Miller was
"not a fit" with Citizens. Miller's citation to the record does
not support his assertions. Appellant's Brief at 13, 20-21, 26
(citing Appellant's Appendix at 100377-83, 100470-71). We decline
to search the record for error and thus refuse to consider these
two assertions. See Farmland Indus. v. Frazier-Parrott
Commodities, Inc.,
enough if it is inconsistent with a reasonable inference of age
discrimination. Id. at 837. We cited with approval Rothmeier v.
Investment Advisers, Inc.,
The district court in its order stated that Miller's attack on the
honesty of the explanation "imperceptibly" shades into the issue of
pretext, and this makes it desirable that we briefly discuss the issues of
pretext raised by Miller. We only briefly treat the arguments raised, as
it is evident not only that Miller failed to establish pretext, but his
argument, other than a flat general statement, simply fails to deal with
his ultimate burden of persuading the court that he has been the victim of
intentional discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 515, 519 (1993); Ryther,
For evidence of pretext, Miller points to his statement that Citizens only told him on one occasion that his job performance was unsatisfactory. This statement, however, does not prove that Citizens' reason for firing Miller, unsatisfactory job performance, is a pretext for age discrimination. On the contrary, it reinforces Citizens' explanation because it is evidence that Citizens considered Miller's job performance to be unsatisfactory.
Additionally, there is uncontradicted evidence in the record that Citizens told Miller four months and two and a half months before his discharge that there were problems with his job performance. Miller admits that four months before his discharge, Cronk sent Miller a memo stating that there was "a very serious problem with your work," and that if Miller's job performance did
not improve drastically, Citizens and Miller "might be parting company!!" Miller also does not deny that Cronk wrote an evaluation of Miller's job performance which mentioned several problems with Miller's work, that Cronk discussed the evaluation with Miller, and that Miller signed the evaluation two and a half months before Citizens fired him. The evaluation and the memo show that Citizens told Miller twice within four months of his discharge that there were problems with his job performance.
Miller argues that Cronk failed to identify during his deposition
specific instances of Miller's poor job performance and that this is
evidence of pretext. Cronk gave his deposition almost three years after
he fired Miller from Citizens. During that deposition Cronk stated several
times that he was aware of specific instances of Miller's poor job
performance when he supervised and fired Miller, but that he could not
presently recall the details of those incidents. Miller does not dispute
that Cronk was aware of specific instances of Miller's poor job performance
when he supervised and later fired Miller; therefore, Cronk's inability to
remember the details of those same incidents at his deposition is not
sufficient to create a material issue of fact. Cf. Aucutt v. Six Flags
Over Mid-America, Inc.,
Finally, Miller argues that he received less extensive training than Langseth and that this is evidence of pretext. Miller states in his affidavit that after his January 1990 meeting with Cronk, he understood Citizens' contact and report requirements and that Citizens expected him to comply with those requirements on every file he handled. Miller also admits in his affidavit that he failed to comply with those requirements after January 1990. Cronk states in his affidavit and deposition that Miller's continued failure to comply with Citizens' contact and report requirements after January 1990 caused him to fire Miller. Thus, the undisputed record shows that a lack of training had nothing to do with Citizens' firing of Miller.
We think it abundantly clear that the district court did not err in
entering summary judgment on behalf of Citizens. For, contrary to what we
have held above, even if we concede that Miller has presented a prima facie
case, and if we further concede that Miller's arguments demonstrate
pretext, there simply is no showing in the record before us that Miller has
met his ultimate burden of establishing that age discrimination was the
cause for his discharge. Our conclusions are further reinforced by Cronk's
hiring of Miller less than three years before his firing of Miller.
*11
As we have stated in similar cases, it is simply incredible, in light of
the weakness of Miller's evidence otherwise, that Cronk, who hired Miller
when Miller was age fifty-five or fifty-six, had suddenly developed an
aversion to older people when he fired Miller less than three years later.
See Lowe v. J.B. Hunt Transport, Inc.,
III.
Miller argues that a provision in Citizens' employee handbook created a contract that obligated Citizens to fire him only if Citizens had cause to do so. Miller contends that Citizens did not have cause to fire him and therefore breached the contract created by the handbook.
Both parties agree that Minnesota law governs this claim. Under
Minnesota law, a provision in an employee handbook can be a binding
contract between an employer and his employees if it meets certain
requirements. See Pine River State Bank v. Mettille,
The Minnesota Supreme Court has not ruled on the effect of such a
disclaimer in an employee handbook. We must, therefore, predict the result
the Minnesota Supreme Court would reach on this issue. See B.B. v.
Continental Ins. Co.,
The Minnesota Supreme Court has stated that a disclaimer
*12
stating that an employee handbook "shall not be construed to form a
contract" prevents an employee from claiming contractual rights under that
handbook. Feges v. Perkins Restaurants, Inc.,
In so holding, we reject the district court's interpretation of
Minnesota law in O'Brien v. A.B.P. Midwest, Inc.,
5 Our recent decision in Patterson v. Tenet Healthcare, Inc., No. 96-2587 (8th Cir. May 12, 1997), is not to the contrary. Patterson recognized that employee handbooks are not contracts under Missouri law, but that an acknowledgment form in the handbook that Patterson signed contained an agreement to arbitrate which was an enforceable contract under Missouri law. Slip op. at 3-5.
Accordingly, we affirm the district court's grant of summary judgment in favor of Citizens.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.