United States Court of Appeals

                             FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 96-1525EA
                                 _____________

Ronald Grossmann,                      *
                                       *
                  Appellee,            *
                                       *    Appeal from the United States
     v.                                *    District Court for the Eastern
                                       *    District of Arkansas.
Dillard Department Stores, Inc.,*
                                       *
                  Appellant.           *
                                 _____________

                       Submitted:    December 11, 1996

                         Filed: March 24, 1997
                               _____________

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                              _____________


FAGG, Circuit Judge.


     Dillard Department Stores, Inc. hired Ronald Grossmann to manage
operations at Dillards' flagship Park Plaza store in Little Rock, Arkansas.
Grossmann was forty-eight.     Dillards fired Grossmann four years later, and
Grossmann sued for age discrimination.           The jury found Dillards had
willfully violated Grossmann's rights under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), and awarded Grossmann
back pay.   The district court denied Dillards' motion for judgment as a
matter of law (JAML), awarded liquidated damages and front pay, and entered
judgment against Dillards for $263,568 plus interest.       Dillards appeals,
and we reverse.


     Viewing the evidence in the light most favorable to Grossmann, and
resolving evidentiary conflicts in Grossmann's favor, see Ryther v. KARE
11, No. 94-3622, 

, at *11 (8th Cir. Mar. 6, 1997) (en banc),
the facts of the case are as follows.      In
November 1989, John Franzke, head of the Dillards division that includes
the   Park   Plaza   store,    interviewed   Grossmann   to   become    Park   Plaza's
operations manager.     The duties of this position include staff scheduling,
maintenance and safety, customer service, and payroll.                 Grossmann told
Franzke he was tired of relocating and wanted to stay put in Little Rock.
Franzke responded favorably.       A few weeks later, Grossmann was hired.          In
1990, Walter Grammer became store manager at Park Plaza and Grossmann's
immediate supervisor.


      During Grossmann’s four years with Dillards, Grossmann received
modest annual merit raises, Grammer praised Grossmann's cost-containment
efforts for 1993, and Grammer rated Grossmann's work "satisfactory" or
"satisfactory plus" in annual evaluations.       On the other hand, Grossmann's
evaluations listed a number of areas for improvement, about which Grammer
and Grossmann agreed.         These included reducing accident claims and cash
register shortages and improving payroll administration.         Around June 1992,
Dillards told its managers to resolve certain staff scheduling problems.
Dissatisfied with Grossmann's dilatory response to this company initiative,
Franzke nearly fired Grossmann in October or November.          Scheduling improved
at Park Plaza, and the crisis passed.


      Dillards periodically conducts unannounced internal audits of its
stores.   Park Plaza's two 1993 audits noted lapses for which Grossmann was
responsible, such as failure to hold monthly safety meetings and inadequate
monitoring of cash register errors.            Several violations involved the
customer service and cash room areas, also under Grossmann, including
mishandled merchandise refunds, missing gift certificates, and improperly
approved checks.      When the auditor arrived at Park Plaza to begin his
August 1993 audit, he found the cash room door open, bags of money outside
the cash room, and no employee on watch.


      In March 1994, Dillards discovered a Park Plaza sales manager




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had been stealing cash merchandise refunds for several months, at a cost
to Dillards of about ten thousand dollars.    This scheme succeeded because
customer service employees under Grossmann's supervision broke the rule
that cash refunds are to be handed over only to customers.       A few days
after the refund thefts came to light, Franzke fired Grossmann.     Franzke
told Grossmann he was dissatisfied with Grossmann's performance and needed
somebody in Grossmann's job who was promotable, transferable, and mobile.
Grossmann was fifty-two when he was fired.    His replacement was twenty-six
and a member of Dillards' Executive Development Program, into which
Dillards recruits recent college graduates.   Of the six operations managers
Franzke hired in 1995, four were over forty, and two were over fifty.


     Reviewing the denial of Dillards' motion for JAML requires us to
determine whether the evidence permits a jury reasonably to infer Dillards
fired Grossmann because of his age.      See Ryther, 

, at *4.
Dillards gave several reasons for Grossmann’s discharge, but the district
court concluded the jury could reasonably reject them all.     We disagree.
For one thing, Grossmann failed to identify any similarly situated employee
Dillards treated differently than it treated Grossmann.        Furthermore,
Grossmann left some of Dillards’ proffered reasons undisputed.       First,
Dillards said Grossmann failed to manage payroll competently.         While
Grossmann defended his performance, he did not deny Dillards had to issue
more manually prepared paychecks for Park Plaza than for any other store
in the company.   Second, Dillards said cash register shortages increased
under Grossmann, and uncontested evidence supports this claim.       Third,
Franzke testified Grossmann's failure to prevent the refund-theft scheme
finally sealed Grossmann’s fate.   Grossmann countered with the testimony
of Dillards' internal auditor, who said Grossmann could not have detected
the scheme.   But detection is one thing, prevention another.     Thus, the
auditor's testimony did not dispute the sincerity of Dillards' explanation,
which appears all the more




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credible considering a 1993 audit had put Grossmann on notice that customer
service personnel were mishandling refunds.


       In any event, the controlling question is not whether Grossmann cast
some doubt on Dillards' expressed reasons for firing him, but whether the
evidence proves Dillards intentionally discriminated against Grossmann.
See Ryther, 

, at *15 (Part I.A. of concurring and dissenting
opinion, in which eight active judges joined).           Having reviewed the record
with   care,   we   are   convinced    the    evidence     falls   short.      To   prove
discrimination, Grossmann relied on his age, his replacement by a younger
worker from Dillards' Executive Development Program, his merit raises and
satisfactory evaluations, Grammer's praise of Grossmann's cost-containment
efforts for 1993, and Franzke's statement that he was firing Grossmann
because Grossmann was not transferable or mobile.              Taking the last point
first, Grossmann links his desire to stay put to his age, and thus argues
Franzke's statement is evidence of age bias.                  We reject Grossmann's
argument.    Even if age and unwillingness to move correlate--and Grossmann
offered no evidence they do--they are not the same, so Franzke could
consider one without the other.       See Hazen Paper Co. v. Biggins, 

, 611 (1993).    Indeed, by contending he was fired because he would not
relocate, Grossmann admits age was not the reason.                  See Rothmeier v.
Investment Advisers, Inc., 

, 1337-38 (8th Cir. 1996).


       The    inferential   force     of     Grossmann's    remaining       evidence     is
negligible.    Grossmann himself said he expected to be replaced by a younger
worker, not because Dillards discriminates but because every qualified
candidate for Grossmann's position was younger than Grossmann.                         That
Dillards recruits recent college graduates is not evidence it discriminates
against older workers.       See Hansard v. Pepsi-Cola Metro. Bottling Co.,
Inc., 

, 1466 n.1 (5th Cir. 1989).               Next, Grossmann's merit
raises were considerably less than the amount Dillards allocated for
managers' raises at Park




                                           -4-
Plaza.   Despite Grammer's overall satisfactory ratings of Grossmann's work,
uncontested    evidence   documented    specific,       serious   failings.        Most
tellingly, Franzke hired Grossmann when Grossmann was forty-eight, fired
him when he was fifty-two, and the following year hired four operations
managers over forty, two of them over fifty.        To uphold the jury's verdict,
we would have to believe that Franzke, himself fifty-eight, was free of age
bias when he hired Grossmann, suddenly turned against older workers four
years later, then just as abruptly changed his mind again.             That is more
than reasonable people can swallow.         See Lowe v. J.B. Hunt Transport, Inc.,

, 174-75 (8th Cir. 1992); 

.


     Because    Grossmann   failed     to    make   a   submissible   case    of    age
discrimination, the district court wrongly denied Dillard's motion for
judgment as a matter of law.     Thus, we need not address the finding of a
willful violation or the front pay award.


     A true copy.


            Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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