Gaworski v. ITT Commercial Finance Corp.

JOHN R. GIBSON, Senior Circuit Judge,

dissenting.

I respectfully dissent because I conclude that no reasonable jury could have determined that ITT terminated Gaworski because of his age, and therefore, I would reverse the judgment of the district court.

The court today concludes that it must affirm the jury’s verdict because Gaworski established a prima facie case of discrimination and there is sufficient evidence from which the jury could reject ITT’s explanation for Gaworski’s termination. I disagree with the court’s analysis of the evidence and its interpretation of the Supreme Court’s most recent decision dealing with discrimination, St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742 (1993). The reasoning of both Justice Scalia’s opinion for the Court and Justice Souter’s dissent in Hicks revolved around the Supreme Court’s earlier decisions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The Court particularly focused on the allocation of the burdens of production required by those cases. The Court stated that once a plaintiff establishes a prima facie case of discrimination, the defendant’s failure to introduce evidence of a non-discriminatory reason will cause judgment to go against it “unless the plaintiffs prima facie case is held to be inadequate in law or fails to convince the factfinder.” Hicks, — U.S. at -, 113 S.Ct. at 2749 n. 3 (emphasis in original). This practical coercion “causes the McDonnell Douglas presumption to function as a means of ‘arranging the presentation of evidence.’ ” Id. (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988)). Both Justices Scalia and Souter acknowledged that at all times the plaintiff has the burden to demonstrate the ultimate fact of intentional discrimination. — U.S. at -, 113 S.Ct. at 2747, 2760.

*1115Justice Scalia’s opinion for the Court makes clear that the burden of production “precedes the credibility-assessment stage.” Id. — U.S. at -, 113 S.Ct. at 2748 (emphasis in original). The Court states: “At the close of the defendant’s case, the court is asked to decide whether an issue of fact remains for the trier of fact to determine.” Id. The Court explained that it would be required to award judgment to the employee as a matter of law if the employee established a prima facie case of discrimination and the employer failed to meet its burden of producing a non-discriminatory reason for its action. Id. The Court explained further that if the employer failed to sustain its burden of producing a non-discriminatory reason for its action, but reasonable minds could differ as to whether the employee established a prima facie case, a question of fact remained for determination. Id.

The Court then considered the situation in which an employer had carried its burden of production by articulating a non-discriminatory justification for its action. Id. — U.S. at -, 113 S.Ct. at 2749. The Court stated: “The McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant,” and “[t]he presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture.” Id — U.S. at -, 113 S.Ct. at 2749 (citing Burdine, 450 U.S. at 255, 101 S.Ct. at 1094).11 Hicks then looked to United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983), and concluded that after the close of evidence, the district court’s inquiry is limited to considering the ultimate issue of whether the defendant intentionally discriminated against the plaintiff, rather than considering the several steps in the shifting burdens. Hicks, — U.S. at -, 113 S.Ct. at 2754.

Thus, the lesson from Hicks is that whether there is a factual issue for determination must be decided at the close of the defendant’s case. At that point, the district court must decide whether the plaintiff has presented sufficient evidence to establish the ultimate fact of intentional discrimination.

This is the approach we have taken in a number of our earlier decisions. We have held that our task on appeal is limited, and that we will not assess the adequacy of a party’s showing at any particular stage of the McDonnell Douglas analysis. Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1482; Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1056 (8th Cir.1993). See Maness v. Star-Kist Foods, Inc., 7 F.3d 704, 707-08 (8th Cir.1993) (following Aikens and Hicks and holding the Burdine analysis irrelevant). Thus, we focus our attention on “the ultimate factual issue of whether [the employer] intentionally discriminated against [the employee],” and study the record to determine whether the evidence was sufficient to support the verdict. Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1481-82; Morgan, 897 F.2d at 948-49; Kientzy, 990 F.2d at 1056.

The court’s analysis starts with language from Hicks that the factfinder’s disbelief of the reasons put forward by the employer may, together with the elements of the prima facie case, suffice to show intentional discrimination and that rejection of the employer’s proffered reason for discharge will permit the trier of fact to infer the ultimate fact of intentional discrimination, and that no additional proof of discrimination is required. Supra at 7 (citing Hicks, — U.S. at -, 113 S.Ct. at 2749). The shortcoming of the court’s analysis is that here we have no clear expression of disbelief or rejection of ITT’s proffered reasons by the jury, but at most, evidence upon which the jury could have rejected ITT’s reasons for discharge.

This case points up the inexact fit of the McDonnell Douglas Burdine standard as restated by Hicks to a ease submitted to a jury. *1116The court instructed the jury in this case as to the elements of the prima facie case, and that it must find that age was a determining factor in ITT’s decision to discharge Gawor-ski. The court instructed the jury most generally that ITT denied that it discriminated against Gaworski because of his age. After explaining to the jury that Gaworski could prove age discrimination in a “variety of ways,” the court instructed that Gaworski could prove age discrimination by meeting his burden of proving that the reasons offered by ITT for his discharge were “arranged to accomplish discrimination” against him or designed as a coverup. The instruction did not state ITT’s proffered reasons for Gaworski’s discharge or require that the jury reject ITT’s reasons. The court submitted the case to the jury using a special verdict form, asking the jury only whether it found that age was the determining factor in Ga-worski’s termination, and if so, what percentage in compensation Gaworski would have received if he had continued his employment.

These most general findings do not show that the jury rejected or disbelieved ITT’s proffered reasons. Indeed, the instructions did not require that the jury reject or disbelieve ITT’s proffered reasons in order to find age discrimination. Thus, in place of the rejection or disbelief required by Hicks to create an inference of age discrimination, we have only the court’s inference of such a finding. From this inference, the court then assumes the ultimate inference of age discrimination. It is a fundamental principle that an inference will not support an inference. The court’s analysis simply fails at this point.

It is also significant that two of the recent opinions of courts of appeals, LeBlanc v. Great American Insurance Company, 6 F.3d 836 (1st Cir.1993), and Anderson v. Baxter Healthcare Corporation, 13 F.3d 1120 (7th Cir.1994), both start their analysis with the same passage from Hicks that the court relies on today. LeBlanc, 6 F.3d at 842-43; Anderson, 13 F.3d at 1122-1124. Both courts sustained summary judgments in favor of the employer. The court in LeBlanc concluded that there was no direct or circumstantial evidence of discriminatory animus on the part of the employer. 6 F.3d at 845. LeBlanc stressed the fact that once the employer articulated non-discriminatory reasons for its action, the presumption of age discrimination raised by the prima facie case vanished. Id. “Left to be decided is whether the evidence, in its entirety, would permit a reasonable fact-finder to infer that Great American’s decision to terminate LeBlanc was inspired by age animus.” Id. The Seventh Circuit in Anderson engaged in a similar, but more detailed, analysis of the evidence put forward to demonstrate the falsity of the employer’s proffered reasons for discharge, and ultimately determined that the evidence was inadequate and that the employee failed to meet the ultimate burden of proving intentional age discrimination. Anderson, 13 F.3d at 1124-26.

Both LeBlanc and Anderson demonstrate the validity of this court’s approach in determining sufficiency of the evidence to support verdicts in age discrimination cases by considering, as the Supreme Court instructed in Aikens, the entire record to determine if the employee has met his burden of proving the ultimate issue of age discrimination.12 The *1117shortcoming of the court’s approach today is simply that it attempts to elevate the infer-enees to a greater position than that accorded them, particularly by the explication of the McDonnell Douglas and Burdine standards in Hicks. The court today simply carries the inference arising from the prima facie case a step too far. As Hicks makes clear, the inference of discrimination falls from the case once the employer articulates a non-discriminatory reason for the discharge. The court’s creation of an inference that the jury must have rejected ITT’s explanation as a basis for continuing the inference does not square with Hicks.

The essence of the court’s reasoning is that an inference of discrimination arises from Gaworski’s prima facie case, separate and distinct from the mandatory rebuttable presumption. Although the court concedes that the mandatory rebuttable presumption drops from the case, the court insists that the inference of discrimination remains and is sufficient to take Gaworski’s case to the jury. Hicks, McDonnell Douglas, and Burdine do not support this reasoning.

The court’s reliance on the force of the inference arising from the prima facie case is best answered by the following footnote from Burdine:13

The phrase ‘prima facie case’ not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiffs burden of producing enough evidence to permit the trier of the fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title VII context we use ‘prima facie case’ in the former sense.

450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7.

The Court made clear in Burdine that if the employer meets its burden of producing a non-discriminatory reason for its action, the mandatory presumption is rebutted and drops from the case. Both the majority and dissenting opinion in Hicks clearly recognize this. Justice Scalia comments that at this point the McDonnell Douglas framework— with its presumptions and burdens — is no longer relevant and to resurrect it would be contradictory to Burdine. Hicks, — U.S. at -, 113 S.Ct. at 2749. In his dissent, Justice Souter states that everyone agrees that the mandatory presumption is not resurrected. Id. at -, 113 S.Ct. 2759 n. 2.

Thus, the issue before us is whether there was sufficient evidence to support an inference of age discrimination. I reject the court’s proposition that the inference from the prima facie case has continuing preemptive force. There is no doubt that once the presumption drops from the case, the evidence introduced to establish a prima facie case and “inferences properly drawn therefrom,” may be considered in determining whether the employer’s explanation is pre-textual. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. Justice Souter specifically referred to this note in his dissent, Hicks, — U.S. at -, 113 S.Ct. at 2759, but it is evident that both Justice Souter in his dissent and the Court in Burdine are discussing the consideration of evidence, not the continuing existence of an independent inference of discrimination. This discussion will not *1118carry the baggage the court attempts to place upon it.

The court concludes that the jury could have inferred age discrimination from evidence that: (1) ITT presented no evidence of the need for a reduction in workforce; (2) ITT’s policies did not support Gaworski’s termination or Olker’s promotion; (3) Gaworski was the oldest, highest paid, and only “pension eligible” employee at Capital Resources; and (4) ITT’s reasons for retaining Olker, a younger employee, were pretextual — Gawor-ski’s job was not really eliminated, Olker replaced him, and Gaworski was more qualified for the position.

None of these facts support an inference of age discrimination. The court today accepts Gaworski’s argument that it may infer age discrimination based on ITT’s lack of evidence about a need for a reduction in force or any objective plan for implementing a reduction. Whether Guimbarda’s decision to reduce Capital Resources’ workforce was a sound business decision, however, is irrelevant to our question of whether Gaworski was terminated because of his age. It is well-established that “the ADEA is not intended to be used as a means of reviewing the propriety” of an employer’s business decision. Jorgensen v. Modern Woodmen of Am., 761 F.2d 502, 505 (8th Cir.1985) (discussing a company’s decision to split an employee’s sales territory); see Neufeld v. Searle Labs., 884 F.2d 335, 340 (8th Cir.1989); Bell v. Gas Serv. Co., 778 F.2d 512, 515 (8th Cir.1985); see generally Walker v. AT & T Technologies, 995 F.2d 846 (8th Cir.1993).

Although we have sometimes found that an employer’s “reduction in force” may have been a ruse to mask intentional age discrimination, see, e.g., Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363 (8th Cir.1987),14 cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989), Gaworski’s own testimony shows that is not the case here. First, Gaworski testified that he was not accusing Guimbarda of laying off five people just to make sure he was laid off, and Gaworski’s counsel’s opening statement and closing argument emphasized that there was no question that Capital Resources’ business had taken a downward turn. Second, Guimbarda laid off four out of seventeen total employees in his division for a twenty-three percent reduction, and Gaworski stipulated that Capital Resources never again employed more individuals than it had remaining after the reduction in force. Moreover, there was un-refuted testimony that although Capital Resources had increased profits preceding the layoff, these profits were driven by the liquidation of loans,15 and that without new business volume there was a decreased prospect for future revenues.16 There was also unre-futed testimony that there was reduced loan processing prior to the layoff, and that reduced loan processing meant reduced demand for loan processing jobs like Gawor-ski’s. Gaworski admitted that the total number of loans generating income had been shrinking in the year preceding his termination. Moreover, if the court creates an inference of discrimination from evidence that ITT’s business was actually increasing, the court must address ITT’s complaint that the district court erred in refusing evidence that Capital Resources eventually closed, and *1119that all employees, including Olker, were laid off. The court’s statement that “reasonable minds could conclude that Gaworski had, in fact, been replaced and that ITT’s purported reduction in force was a pretextual explanation for his discharge” contradicts the evidence in this case, including Gaworski’s own admission. I conclude that no reasonable juror could have found that Guimbarda reduced the workforce as a means to discriminate against Gaworski because of his age.

Along this same line, the court accepts Gaworski’s argument that Guimbarda’s failure to follow ITT’s written policies regarding the layoff and promotion of Olker is evidence from which a jury could infer age discrimination. The ITT termination policy provides that no layoff may occur without advance written notification to senior levels of operating management and the director of personnel. Robert Tate, the director of personnel, testified that Guimbarda “technically” violad ed the policy by giving Tate verbal, instead of written, notification. Guimbarda’s failure to comply with an administrative requirement, however, is not enough to infer that age was a determining factor in his decision to terminate Gaworski. Guimbarda notified Tate of the reduction, indeed, Tate traveled to Guimbarda’s division to assist with the reduction in force. As we observed earlier, even Gaworski stopped short of accusing Guimbarda of laying off five people just so he could terminate Gaworski because of his age. Likewise, although certain procedures may apply in normal promotional decisions, the failure to “formally” review Olker’s performance before adding most of Gaworski’s former duties to Olker’s job is not evidence that age influenced Guimbarda’s decision to terminate Gaworski.

The court also concludes that the jury could have inferred age discrimination because Gaworski was the oldest, highest paid, and only “pension eligible” employee at Capital Resources. A unanimous Supreme Court recently held that an employer does not violate the ADEA by acting on the basis of a factor, such as an employee’s pension status or seniority, that is empirically correlated with age. Hazen Paper Co. v. Biggins, — U.S. -, -, 113 S.Ct. 1701, 1705, 123 L.Ed.2d 338 (1993).17

The Court reiterated that liability in a disparate treatment case “depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.” Id. at- , 113 S.Ct. at 1706; see Aikens, 460 U.S. at 716, 103 S.Ct. at 1482. The Court observed that an employer may be liable when it relies on a formal, facially discriminatory policy requiring adverse treatment of employees with the protected trait, or when it is motivated by the protected trait on an informal, ad hoc basis. Hazen Paper, — U.S. at -, 113 S.Ct. at 1706. Nevertheless, the Court emphasized that “[wjhatever the employer’s decisionmaking process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.” Id. Thus, the Court concluded that “an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service.” Id. at -, 113 S.Ct. at 1707-08. The Court cautioned, however, that an employer who “targets employees” with a particular pension status on the assumption that those employees are likely to be older engages in age discrimination. Id. In that situation, pension status (or in a similar situation, another empirically correlated factor) may be a “proxy” for age in the sense that an employer may suppose a correlation between the two factors and act accordingly, but not in the sense that the ADEA makes the two factors equivalent. Id. (rejecting Metz v. Transit Mix, Inc., 828 F.2d 1202, 1208 (7th Cir.1987), which interpreted “proxy” to mean statutory equivalence).

The court today also finds evidence of age discrimination from the fact that Gaworski was the oldest employee. Although the ADEA prohibits age-based employment decisions, it does not confer special rights on an *1120employee who happens to be the “oldest” in a company or division. Thus, we should not infer age discrimination from the simple fact that Gaworski happened to be the oldest in the division. See Hicks, — U.S. at -, 113 S.Ct. at 2747. Without more than evidence of status in the protected class, the ADEA does not impose liability. The evidence here does not suggest that Guimbarda “suppose[d] a correlation” between Gawor-ski’s age and his status as the “oldest” employee and acted accordingly. See Hazen Paper, — U.S. at -, 113 S.Ct. at 1707. Indeed, none of the other laid off employees was within the protected class, and Olker (age 46), was also in the protected class.

Next, even assuming Guimbarda laid off Gaworski because he had the highest salary, there is still no evidence that Gaworski’s age prompted that decision. An analytical framework similar to that used in Hazen Paper can be applied to salary levels: A younger employee, outside the protected class, may have spent his entire career with one employer and worked his way up the ranks to obtain a higher salary than a newly hired older worker. The Supreme Court rejected the Seventh Circuit’s decision in Metz, 828 F.2d at 1208, which held that terminating an employee for having a higher salary may be a “proxy” for age discrimination, meaning the statutory equivalent of age discrimination.18 Hazen Paper, — U.S. at -, 113 S.Ct. at 1707. Interestingly, if Guimbarda had used seniority to distinguish Gaworski and Olker, Gaworski still would have been laid off because although both worked at Capital Resources for about the same amount of time, Olker had worked for ITT approximately eight years longer than Gaworski. Again, the evidence here does not suggest that Guimbarda “suppose[d] a correlation” between Gaworski’s age and his status as the “highest paid” employee and acted accordingly. See id.; Anderson, 13 F.3d at 1126 (employee could not prove age discrimination even if he was fired simply because employer desired to reduce its salary costs by discharging him).

Finally, the mere fact that Gaworski was “pension eligible” is not enough to infer age discrimination. Contrary to the implication of the court, the decision to lay off Gaworski did not deprive him from his pension because he had already qualified to receive his base pension benefits. Although the decision may have deprived him of the possibility to qualify for a higher pension (thirty to forty percent more) with added years of service, company policy required him to work for ITT for approximately ten more years. Such an assumption requires too much speculation. Indeed, Gaworski’s argument might be more persuasive if ITT had terminated him immediately before he became eligible for an increase in pension benefits as eligibility was based on meeting the preliminary age requirement of fifty-five as well as years of service. Cf. Hazen Paper, — U.S. at -, 113 S.Ct. at 1707-08 (limiting holding to plans with only a years-of-service eligibility requirement).

The court also concludes that age discrimination is established because ITT’s reasons for retaining Olker instead of Gaworski were pretextual. The court concludes that a reasonable jury could conclude that Gaworski’s job was not “eliminated” as ITT claims because Olker replaced him, and that Gaworski was more qualified than Olker for the position, and that these facts are sufficient to support an inference of age discrimination.

To ultimately prevail, however, Gaworski must show not only that ITT’s reasons were pretextual, but that age was the real reason for firing him. Hicks, — U.S. at -, 113 S.Ct. at 2747. This he failed to do. Guim-barda testified that in downsizing the division, he needed credit analysis and credit investigation skills more than he needed supervisory skills. He explained that he chose to retain Olker over Gaworski because Olker had more computer experience, had about the same amount of time in the division as *1121Gaworski, and had more experience doing actual credit write ups and analysis. Guim-barda testified that Olker’s computer experience19 was the critical difference because Olker could fix the computer system if it went down. Gaworski admitted that Olker had more computer experience and had been involved in developing the Capital Resources’ software. Although Gaworski believed another employee had more familiarity with how the system worked, he did not dispute Olker’s capabilities. Instead, Gaworski attacks ITT’s need for Olker’s computer skills in the “manager of credit and administration” position. Gaworski points out that the “manager of credit and administration” job description neither lists computer work as a responsibility, nor requires computer skills in its description of qualifications. Nevertheless, Gaworski conceded that ITT’s job descriptions are not rigidly followed. Gawor-ski’s own job description described his title as “manager of credit and operations,” while Gaworski testified that his title was “vice president and investment director.” Gawor-ski also admitted that when he hired Olker for a senior investment manager position, Olker did not meet the minimum listed qualifications. Gaworski also testified that he did not remember whether he had considered the job description when he recommended Olker for the position, and although Olker did not meet the listed qualifications, he did not think he was discriminating against anyone. Thus, viewing the evidence in the light most favorable to Gaworski, I believe that there is insufficient evidence to show that Gaworski’s age, not Olker’s computer skills or some other reason, was the real reason ITT retained Olker instead of Gaworski. See id. at -, 113 S.Ct. at 2752-56. Again, this court cannot second guess a business’ decision that computer skills are valuable to a division that has lost five employees. Jorgensen, 761 F.2d at 505; see Neufeld, 884 F.2d at 340; Bell, 778 F.2d at 515; see generally Walker, 995 F.2d at 846.

Even assuming that all of Guimbarda’s stated reasons were false, that does not answer the ultimate question. Merely proving that Guimbarda’s reasons are false is not enough to prove unlawful age discrimination — Gaworski must prove that age discrimination was the real reason for his termination. Id. — U.S. at -, 113 S.Ct. at 2755-56. There is insufficient evidence on this record to link any of Guimbarda’s decisions to Gaworski’s age.

Finally, although direct evidence is not required to prove age discrimination, Gawor-ski presented no direct evidence or pattern and practice evidence from which discrimination might be inferred. Gaworski testified that he did not sense any hostility from Guimbarda regarding his age, no one at ITT had ever referred to his age in a disparaging way, he had never been treated badly because of his age, and no documents referred disparagingly to his age. The Capital Resources group hired Gaworski when he was 53. Nor was there evidence of any negative comments about older people generally. Guimbarda had hired several employees in the protected class, and other than Gaworski, never fired any other employees who were in the protected class. Indeed, none of the other laid-off employees was in the protected age group. The evidence is simply not enough to create a jury question.

For the same reasons, I also conclude that Gaworski failed to make a prima facie case under Holley v. Sanyo Manufacturing Inc., 771 F.2d at 1161, 1166-68 (8th Cir.1985),20 by *1122demonstrating “additional evidence” that age was a factor in his termination.

After carefully examining the evidence, I conclude that no reasonable jury could have found that Guimbarda fired Gaworski because of his age. Accordingly, I dissent and would reverse the district court’s order denying ITT’s motion for judgment notwithstanding the verdict.

. Burdine explains that if the employer meets its burden of articulating a non-discriminatory reason for its action, "the factual inquiry proceeds to a new level of specificity.... [T]he plaintiff will have a full and fair opportunity to demonstrate pretext,” and the retained burden of persuasion "merges with the ultimate burden of persuading the court that [he] has been the victim of intentional discrimination.” 450 U.S. at 255-56, 101 S.Ct. at 1095. See Hicks, — U.S. at -, -, 113 S.Ct. at 2752, 2760-61.

. Anderson and LeBlanc comport in the sense that both courts agree that all of the evidence must be considered in determining whether there is sufficient evidence of age discrimination. Anderson, however, focused on whether sufficient evidence existed to disprove the employer’s proffered reasons, id. 13 F.3d at 1122-1123, while LeBlanc focused on the sufficiency of all of the evidence to support a finding of discrimination. Insofar as the two cases demonstrate a different interpretation of Hicks, I am more persuaded by the approach of the First Circuit. Indeed, the First Circuit’s analysis follows most of the decisions in this circuit. See, e.g., Maness, 7 F.3d at 707-08; Kientzy, 990 F.2d at 1056-60. Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173 (8th Cir.1992), stated the general proposition that a plaintiff making a prima facie case and presenting evidence which would discredit the employer’s justification has a right to go to the trier of fact, but it further emphasized that ’’[ajfter the case is over and has been appealed, the question is simply whether the evidence ... was sufficient to justify a reasonable jury in finding discrimination.” Id. at 175. Lowe affirmed the district court’s directed verdict for the employer, concluding that the employee's attacks on the employer’s justification "though not themselves, logically inconsistent with age as a motive, were too weak to justify a rational inference of discrimina*1117tion when viewed against the undisputed background facts.” Id.

. Burdine also cites a number of treatises discussing the roles of the presumption created by a prima facie case, 450 U.S. at 255 n. 8, 10, 101 S.Ct. at 1095 n. 8, 10, including J. Thayer, Preliminary Treatise on Evidence 346 (1898), which states:

It is one of the commonest of errors to misapprehend the scope and limitations of the ordinary rules and maxims of presumption; and to attribute to them a mistaken quality and force. They are, as we have seen, merely prima facie precepts; and they presuppose only certain specific and expressed facts. The addition of other facts, if they be such as have evidential bearing, may make the presumption inapplicable. All is then turned into an ordinary question of evidence, and the two or three general facts presupposed in the rule of presumption take their place with the rest, and operate, with their own natural force, as a part of the total mass of probative matter. Of course the considerations which have made these two or three facts the subject of a rule of presumption may still operate, or may not, to emphasize their quality as evidence; but the main point to observe is, that the rule of presumption has vanished.

. In Hillebrand, we considered whether the plaintiff had established a prima facie case of discrimination sufficient to move beyond summary judgment. 827 F.2d at 366-68. We specifically limited our decision to determining whether the district court erred in concluding that the employee had not established a prima facie case of age discrimination. Id. at 367. We did not decide whether the employee had presented sufficient evidence to ultimately prove that age had been a determining factor in the employer's deci- . sion. See Hicks, - U.S. at-, 113 S.Ct at 2754. This case, however, has gone beyond the summary judgment stage and whether Gaworski established a prima facie case is no longer relevant. We must determine whether Gaworski carried his burden of proving that he was laid off because of his age. Id.

. Guimbarda explained the profits as a direct result of the shrinkage of the portfolio through the recapture of loss reserves, prepayment penalties, and the gain on the sale of lease assets.

. Guimbarda stated that Capital Resources made money by obtaining new loans, managing the existing portfolio of loans and leases, and collecting interest and lease payments. Guim-barda explained that "if your total pool of loans and leases are shrinking, then you are likely to be earning less in the future than you are currently earning.”

. The Court recognized the Circuits’ disagreement regarding various empirically correlated factors, including pension benefits, salary, and seniority. Hazen Paper, — U.S. at -, 113 S.Ct. at 1705.

. The Seventh Circuit looked to part of our analysis in Leftwich v. Harris-Stowe State College, 702 F.2d 686, 691 (8th Cir.1983), to support its conclusions. See Metz, 828 F.2d at 1206-07. We express no opinion regarding Leftwich, however, as it involved allegations of disparate impact where a state college based its employment decisions on tenure status. See id. at 689-90. Here, Gaworski alleges disparate treatment resulting from the reduction in force and Guimbar-da’s decision to retain Olker.

. In fact, Olker had a significant role in creating the computer programs, and thus. Guimbar-da concluded this special knowledge was important should the system "crash."

. The court today also concludes that this is not a reduction in force case governed by Holley v. Sanyo Manufacturing Inc., 771 F.2d 1161 (8th Cir.1985). The court reasons that because Ga-worski's duties and office were subsumed by Olker, Capital Resources did not actually "eliminate” Gaworski’s position. The court finds further support for its conclusion because there was a lack of objective criteria in determining which jobs would be eliminated. Guimbarda's testimony, however, detailed his objective decision-making process in deciding which employees to lay off. Gaworski does not dispute that the division downsized from 17 to 13 employees, or that the division never hired any more people. Cf. Hillebrand, 827 F.2d at 366 (only one employee involved in the alleged reduction in force). This is obviously a reduction in force case. See id. at 367 ("most cases simply assume that a reduction in force has occurred").