dissenting.
I respectfully dissent. I conclude that RARE 11 is entitled to judgment as a matter of law or, at a minimum, a new trial.
As the court explains, when a discrimination case is submitted to the jury, the presumption created by plaintiffs prima facie case is no longer relevant. But if the plaintiff has no direct evidence of age discrimination, as in this case, the elements of the prima facie case remain relevant, for they may, along with proof of pretext, satisfy plaintiffs ultimate burden to prove age discrimination. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749. Thus, in submitting this case, the district court instructed the jury on four elements of Ryther’s prima facie case. See footnote 14, supra at p. 1087.
There is no rigid formula defining the elements of a prima facie case of discrimination. See United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). The elements necessarily vary depending upon, for example, the *1090type of adverse employment action that is challenged and the nature of the alleged discrimination. But in every case, those elements must be sufficient to raise a valid inference of unlawful discrimination. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-77, 98 S.Ct. 2943, 2948-50, 57 L.Ed.2d 957 (1978). Here, the district court in my view failed to properly define the elements of Ryther’s prima facie case. To explain why, I must review some undisputed facts concerning Ryther’s employment history wdth KARE 11.
Ryther was first hired as Channel ll’s lead sportscaster in 1979, when he was 41 years old and the station was under different ownership. Ryther was given a three-year fixed term contract at an initial annual salary of $55,000. The contract was renewed in 1982. Gannett/KARE 11 acquired Channel 11 in 1983. KARE 11 renewed Ryther’s contract for additional three-year terms in 1985 and 1988. During the final year of the 1988 contract, Ryther was paid an annual salary of $160,000.
Television broadcasting stations commonly conduct periodic market research to survey the popularity of both the station and its on-air “personalities” in the local market. In December 1981, the independent research firm of Atkinson-Farris Communications surveyed the Twin Cities television audience for Channel 11. The researchers reported that Channel 11 was a distant third in “rating” among the three Twin Cities network affiliates.1 Regarding the popularity of Ryther, Atkinson-Farris reported:
The situation for Tom Ryther is particularly unfortunate. First, his overall [Quality] Score is not impressive (17), but more important, viewers of [Channel 11] are not even enthusiastic. A Quality Score of 18 from supporters of a personality’s own station is extremely low.
Between May 1986 and October 1988, Gan-nett’s in-house research organization conducted a number of “Tracking Studies” of the Twin Cities market. These studies showed Ryther’s market impact and ability to attract viewers holding steady, well below KARE ll’s newly-hired news and weather anchors. The studies also revealed that Mark Rosen, the new lead sportscaster for arch-rival WCCO, had already passed Ryther in these popularity measures.
In 1989, the Atkinson research firm again surveyed the Twin Cities television audience for KARE 11. It found that KARE ll’s news programs had made “massive progress” since 1981, pulling even with WCCO in overall customer preference, well ahead of the third network affiliate. It found that KARE ll’s lead news anchor had “the broadest base of support among newscasters in the market,” and that its weather anchor was “the on-air person with the broadest appeal and greatest pulling power.” However, it characterized KARE 11 sports as “the softest part of your team.” It found that Ryther had “virtually the same ratings he had in our 1981 project,” while Mark Rosen “has been able to come into the market during that time and pass Ryther.” The report also noted that sports was relatively unimportant to viewers in choosing a local news program; only five percent of the persons surveyed listed sports as a reason for their newscast preferences.
In 1990, KARE 11 retained the Gallup organization to again survey the Twin Cities market. The Gallup survey again found that sports was a “low interest” facet of KARE ll’s broadcasts, with a value of six percent (compared, for example, to weather’s 76 percent). Gallup also reported that Ryther had relatively high viewer recognition (76 percent, compared to 81 percent for Mark Ro-sen), but low net impact (28 percent, compared to 45 percent for Rosen). KARE ll’s other sportscasters, Jeff Passolt and Randy Shaver, had low recognition and low net impact. Because a widely recognized personality should attract more viewers, Gallup’s expert, Dr. Frank Newport, testified that Ryther’s scores — high recognition but low net impact — placed him in Gallup’s “penalty box.” The Gallup report concluded:
*1091The data suggest that Tom Ryther is not a strongly positive factor for KARE. The sportseaster position is the only front four role which is not filled by a very strong player for KARE. Ryther himself does below average on many of the key indicators created in this research: he underper-forms based on where we think he should be based on his recognition and years in market.
Passolt, on the other hand, is no superstar either. His overall net impact, in fact, is roughly the same as Ryther’s. The plus for Passolt would appear to be that he has a lower recognition, and thus is now performing at a higher level relative] to where we think that he should be. Thus, it is our opinion that Passolt has the higher potential for the station.
At any rate, a change in sportseaster would appear to have a relatively low down-side risk for the station as Ryther is no star as is.
Shortly after receiving the Gallup report in the fall of 1990, KARE 11 decided not to renew Ryther’s contract in July 1991. However, the station also decided to leave Ryther in place until his three-year contract expired in July 1991.2 Because KARE 11 permitted Ryther to complete his three-year contract term, the refusal to offer him a new contract in 1991 was, in essence, a refusal to hire. Thus, no matter how favorable Ryther’s internal performance reviews at KARE 11 had been in the past, the relevant question in July 1991 was whether he was qualified to be hired (or rehired) as the lead sportseaster at a Twin Cities television station at a salary of $160,000 per year.
The district court’s jury instruction took no account of this critical aspect of the case. Far worse, the instruction quoted in footnote 14 significantly misstated the elements of Ryther’s prima facie case when it instructed the jury to find whether, “Second, plaintiffs job performance was satisfactory,” and “Third, plaintiff was terminated from his job when his contract was not renewed.” This instruction told the jury to ignore the fundamental difference between the decision whether to rehire an employee whose fixed-term contract has expired, and the decision whether to terminate an employee who has worked without the guaranteed but limited security of a fixed-term contract.
The instructions also ignored another essential aspect of the evidence in this case that impacts upon the elements of a prima facie case. The 1989 and 1990 research showed that (i) KARE 11 had gained substantial overall ratings despite a weak sports anchor, and (ii) sports attracts relatively few Twin Cities viewers. Following Ryther’s non-renewal, his duties were spread among the remaining KARE 11 sportscasters; no one was added to the KARE 11 sports team. The independent market research justified KARE ll’s decision to reduce this part of its newsroom force by not renewing an under-performing, highly compensated lead sportscaster and redistributing his job among the remaining staff. Compare Thomure v. Phillips Furniture Co., 30 F.3d 1020, 1024 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1255, 131 L.Ed.2d 135 (1995). Thus, the case had evidentiary elements of a reduction-in-force, and the jury should have been instructed accordingly.
In my view, this was prejudicial instruction error. Given ten years of market research showing that Ryther lacked the ability to attract local viewers, no Twin Cities station would have considered him qualified for his former position and salary.3 Thus, the independent market research gave KARE 11 a powerful, objective business reason for not renewing Ryther’s contract that, in addition, refuted an essential element of his prima *1092facie case. Compare Hayman v. National Acad. of Sciences, 23 F.3d 535, 538 (D.C.Cir.1994); Craft v. Metromedia, Inc., 766 F.2d 1205, 1216 (8th Cir.1985), cert. denied, 475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986).4 And this research was disinterested, objective evidence gathered and offered at trial by third party professionals. See Dace v. ACF Indus., Inc., 722 F.2d 374, 377 n. 6 (8th Cir.1983).
In these circumstances, Ryther’s purported pretext evidence failed to create a submissive case of age discrimination. When the employer’s objective evidence not only tends to establish a legitimate, nondiscriminatory reason for the adverse employment action, but also effectively refutes the plaintiffs pri-ma facie case, I think it highly unlikely that pretext evidence can support a reasonable inference of age discrimination. Evidence of pretext “is relevant only to the extent it contributes to an inference that [KARE 11] intentionally discriminated against [Ryther] because of his age. See Hicks, 509 U.S. at 510, 113 S.Ct. at 2749.” Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 801 (8th Cir.1994).5
To summarize, ten years of independent market research established that Ryther was the overpaid, underperforming anchor of the least significant segment of KARE ll’s news team. Gallup recommended a change, and KARE 11 acted on that recommendation. “[T]he issue is not whether the reason articulated by the employer warranted the discharge, but whether the employer acted for a nondiscriminatory reason.” Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 292 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983). Although Ryther obviously persuaded the jury that KARE 11 treated him unfairly, I conclude he did not prove intentional age discrimination. Therefore, this case presents the same situation we faced in Barber v. American Airlines, Inc., 791 F.2d 658, 661 (8th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986):
We have carefully read every page of the testimony at this trial, and we are persuaded that this stringent standard [for setting aside a jury verdict] has been met. The jury could rationally have believed that plaintiffs ought in good conscience to have been permitted to stay in Little Rock ... but there is absolutely no substantial evidence in this record that would justify attributing American’s actions to plaintiffs’ age.
Like the panel in Barber, I would hold that the district court erred in denying KARE ll’s post-trial motion for judgment as a matter of law. At a minimum, I believe that the district court’s prejudicial instruction errors warrant a new trial.6 For these reasons, I respectfully dissent.
. A station’s rating (number of viewers) is critical because advertising charges, and therefore revenues, depend upon rating.
. Incredibly, the court repeatedly draws adverse inferences from KARE ll’s delay in advising Ryther of its decision not to renew. Having properly concluded to honor its contractual commitment, KARE 11 would have been foolish, as well as insensitive, to advise this high-profile employee of its adverse decision before Spring 1991.
. The court's focus on the fact that Ryther finished second to Mark Rosen in Gallup’s study of net impact on viewers reminds me of a Russian parable describing the Soviet press. After President Kennedy defeated Chairman Krushchev in a 100-yard dash, Pravda reported: "Our beloved Nikita finished a respectable second place, while the American President was a dismal next-to-last.”
. At trial, KARE 11 's three decisionmakers consistently identified market research as the reason Ryther was not rehired. Janet Mason testified, “the primary information or tool that we used in making that decision was the research.” Linda Rios Brook testified Ryther was not renewed “[o]n the basis of the research. That was the overriding reason.” Richard Modig testified, “Well, it was really the research. I think the research, especially over a long period of time, was crystal clear.”
. A prime example of irrelevant pretext evidence are the scraps of newsroom backbiting related at length in the court's opinion. To survive, television stations must focus on a personality’s ability to attract audience, not on his age or the bags under his eyes. One of the most beloved sportscasters today is the elderly Harry Caray, whose nationwide broadcasts of Chicago Cubs baseball games have helped make the perennially unsuccessful Cubs one of the most popular teams in the National League. Does the court seriously believe that KARE 11 would have non-renewed a term contract with Harry Caray because some ambitious but unproven underling complained that he was an "old fart" who shouldn't be on the air?
.I agree with KARE 11 that the instruction quoted in footnote 14 did not properly convey to the jury the Supreme Court’s teachings in Hicks. I note that the court does not approve that instruction, and I would discourage its use in future cases.