Unpublished Disposition, 927 F.2d 609 (9th Cir. 1991)

MEMORANDUM^* 

Nell Harrison appeals the district court's order granting summary judgment in favor of Mattel in Harrison's age discrimination action. The district court had jurisdiction under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(c) (1). This court has jurisdiction under 28 U.S.C. § 1291. We affirm the grant of summary judgment.

* In reviewing a grant of summary judgment, we consider the evidence in the light most favorable to the losing party and determine de novo whether there is a genuine issue of material fact or whether the movant is entitled to judgment as a matter of law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

Discrimination claims based on circumstantial evidence are analyzed according to the same standard used in Title VII disparate treatment cases. Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1436 (9th Cir. 1990). Under that standard, if the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. To prevail, the plaintiff must demonstrate that the employer's alleged reason is a pretext for another motive that is discriminatory. Id. at 1436-37.

Mattel concedes, for purposes of summary judgment, that Harrison established a prima facie case of age discrimination. Mattel, however, provided ample proof of legitimate, nondiscriminatory reasons for terminating Harrison's position. Thus, the important issue is whether Mattel's proffered reasons were pretextual.

Harrison had the burden of showing pretext, either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence. Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987).

II

Direct Evidence of Discriminatory Motivation

Fermin Cuza denied that Harrison's age had anything to do with Cuza's decision to eliminate her position. Harrison admitted in her deposition that she had no reason to suspect age discrimination played a part in the decision.

Harrison now claims the terms used by her supervisors to evaluate her are direct evidence of Mattel's discriminatory motivation. Harrison's supervisors at some point may have described Harrison as "not innovative," "stern" and "inflexible." Harrison does not dispute the accuracy of these descriptions. In fact, these traits appear to have led her supervisors to conclude that Harrison lacked important interpersonal skills necessary for strong management. Harrison's characterization of these remarks as "synonymous with 'old,' " is farfetched. Such an evaluation is hardly direct evidence of age discrimination. These qualities could be considered negative no matter what the age of the employee to whom they apply. Harrison points to no other direct evidence of pretext.

III

Indirect Evidence as to Lack of Credibility

In support of her argument that Mattel's reasons were pretextual, Harrison asserts that she was qualified for her position. Harrison points to 18 years of satisfactory evaluations. But Harrison's assertion that she was able to do the job that was eliminated fails to address whether she was qualified to perform a newly-created job with expanded responsibilities.

The Seventh Circuit recently addressed almost the identical argument in a similar context. The court held the fact that the plaintiff was well qualified to direct his department before the defendant's reorganization was irrelevant in determining whether he was qualified to remain director in light of the defendant's "new policy-oriented focus." Weihaupt v. American Medical Ass'n, 874 F.2d 419, 427 (7th Cir. 1989). Harrison's satisfactory record in the past does not affect the credibility of Mattel's explanation.

Harrison insists whether her job actually was eliminated, or merely was renamed and divided among two new people constitutes a genuine issue of material fact. Mattel submitted proof that two new people took on many responsibilities in addition to those assumed by Harrison. Harrison says " [t]here is evidence that this was not true," but points only to deposition testimony in which Cuza admits that Jacoby and DiPietro assumed some duties that previously belonged to Harrison. Cuza also admits that DiPietro's job title was changed. Viewing this evidence in a light favorable to Harrison does not change the fact that she produced no evidence to rebut Mattel's showing that Harrison performed many tasks now more efficiently distributed among employees other than Jacoby and DiPietro. See Merrick, 892 F.2d at 1438 (upholding summary judgment where none of the facts advanced by plaintiff were inconsistent with defendant's legitimate justifications).

Harrison argues that Mattel's credibility is in doubt. In support she points to an alleged inconsistency between Mattel's justification of reducing costs and its action of distributing most of her responsibilities among two new hires. The district court did not find this to affect Mattel's credibility because Mattel showed that its restructuring created a more efficient department. The department was able to terminate more people than it hired and to reduce its size from approximately 56 employees to approximately 42. In this context, showing that two new people now do some of the things one person did before does not materially affect the credibility of Mattel's explanation.

IV

Harrison failed to present any disputed material facts regarding whether Mattel's business reasons for terminating her position were a pretext for age discrimination. Therefore, we affirm the district court's grant of summary judgment for Mattel.

AFFIRMED.