39 Fair Empl.prac.cas. 1266,40 Empl. Prac. Dec. P 36,143unpublished Dispositionnotice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.alfred Doscherholmen, M.d., Appellant v. Harry N. Walters et al., Appellees, 754 F.2d 377 (8th Cir. 1984)

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U.S. Court of Appeals for the Eighth Circuit - 754 F.2d 377 (8th Cir. 1984) Nov. 6, 1984

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.


PER CURIAM

This appeal was brought by Alfred Doscherholmen from an adverse judgment entered by the district court1  on his age discrimination claim against Harry N. Walters, Administrator, the Verterans Administration Medical Center, Minneapolis, Minnesota, and the United States Veterans Administration. We affirm.

Doscherholmen was sixty-six years old and the oldest staff internist at the Minneapolis VA when in January, 1982 he was asked to consider a transfer to the VA's out-patient clinic to do rating examinations. An unexpected staff shortage had arisen at the clinic and appellees wanted someone with appellant's skill to fill the vacancy. He refused the transfer on the basis it would be a demotion. His status and pay were to remain the same; however, he maintains that the rigid schedule and lack of facilities at the clinic would prevent him from continuing his research and teaching. Dr. Petzel, the chief of staff, promised Doscherholmen he could continue these activities, but appellant was excluded from the teaching roster and his research grant was not renewed. When discussing the transfer Petzel commented upon appellant's age and pension benefits. Petzel maintains retirement was discussed because Doscherholmen suggested it as an alternative to the transfer. Appellant asserts he never expressed an intent to retire.

Appellant received written instructions to report to the outpatient clinic on May 24, 1982. When he did not arrive for work on the assigned day he was declared absent without leave. On March 4, 1983 he received notice that he would be discharged. He appealed, but on March 18, 1983 he was terminated.

Doscherholmen contends he was replaced by a Dr. Steven Miles who is in his thirties. The VA created a geriatric internist opening in the spring of 1982 and Miles was hired for the position in April of that year. Appellees assert that he did not replace Doscherholmen because Miles was a temporary employee and he was hired three months after appellant's transfer was first discussed.

Appellant maintains that his transfer was a demotion in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. In order to establish a prima facie case of age discrimination appellant had to prove (1) he was in the protected age group; (2) he was performing his job at a satisfactory level; (3) he suffered an adverse employment decision; and (4) his employer hired someone for the same job after he left. Halsell v. Kimberly-Clark 683 F.2d 285, 290 (8th Cir. 1982) (quoting Loeb v. Textron 600 F.2d 1003, 1013-14 (1st Cir. 1979)). The district court found that Doscherholmen had failed to establish a prima facie case of age discrimination and that his transfer was a pe.missible managerial decision. The court also determined that assuming appellant had proven a prima facie case, the appellees had articulated a legitimate nondiscriminatory reason for the transfer--the need to fill the vacancy at the outpatient clinic.

We have carefully reviewed the record and briefs in this case and, while there is evidence which could support a showing of age discrimination, we believe that the judgment of the district court is based on findings of fact that are not clearly erroneous and that no error of law appears. Accordingly, the judgment of the district court is affirmed. See 8th Cir.Rule 14.

 1

The Honorable Edward J. Devitt, United States Senior District Judge, District of Minnesota