United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3107
                        ___________________________

                              Sharilyn Haggenmiller

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                           ABM Parking Services, Inc.

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                             Submitted: May 17, 2016
                             Filed: September 14, 2016
                                  ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Sixty-three-year-old Sharilyn Haggenmiller was terminated from her job at
ABM Parking Services, Inc. (ABM), a parking facility management company that
operates parking facilities in the Minneapolis-St. Paul International Airport (MSP
airport). Haggenmiller sued her former employer in Minnesota state court, alleging
she was unlawfully terminated based on age in violation of the Minnesota Human
Rights Act, see Minn. Stat. § 363A.08. ABM removed the action, and the district
court1 granted summary judgment to ABM. Haggenmiller appeals. Having appellate
jurisdiction, see 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND
      A.     Facts
      ABM operates parking garages throughout the country. On July 1, 2004, ABM
entered into the Parking Enterprise Operation Management Services Agreement
(agreement) with the Metropolitan Airports Commission (MAC), a Minnesota public
corporation that owns, operates, and maintains the MSP airport. Under the agreement,
ABM operated the MSP airport parking facilities, and MAC reimbursed ABM for
“authorized expenses,” including ABM employee salaries and benefits. Pursuant to
the agreement, the ABM general manager at the MSP airport was “assigned only to
and work[ed] exclusively for the MAC at this location” and was to report directly to
MAC.

       Sharilyn Haggenmiller began working as a human resources administrative
assistant for the MSP airport facility operated by ABM in August of 2004. The
approximately ten to twelve ABM office employees at the MSP airport worked in a
two-story office building near the entrance of general parking in terminal one and
supported the nearly 100 individuals working in parking operations. After a couple
years, Haggenmiller started working with the auditing department. Though she kept
many of her administrative responsibilities, according to Haggenmiller, her primary
responsibility was auditing. Each week, the auditors received crates full of parking
tickets that had been removed from cashiers’ boxes in the parking facilities.
Haggenmiller’s job was to manually check the parking tickets against the cashiers’
reports and balance the daily total. Haggenmiller then created a report by manually
entering the information into a computer program called Citrix. Haggenmiller’s other


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                        -2-
duties involved billing and administrative tasks—including sending bad checks to
collections, answering the phone, communicating with customers about refunds, and
maintaining the company bulletin board.2

      During Haggenmiller’s time at ABM, new technology and automation
eliminated some of her duties. For instance, ABM began (1) using a computer
program that automatically populated reports Haggenmiller formerly entered
manually; (2) accepting credit cards at entrance and exit ramps; and (3) operating a
cash-counting machine, eliminating the need for auditors to count the cash by hand.

       Haggenmiller received positive performance reviews for her work. On her
December 2012 performance evaluation, she received “Excellent” rankings in the
categories of dependability, communication, and working with others, and a “Good”
ranking in job knowledge and skill, quality of work, and work quantity. Delana
Gerten, Haggenmiller’s supervisor, described her as “helpful, cooperative, reliable and
courteous.” Gerten wrote, “Our Audit team can count on her, with a smile, to help in
any task asked of her.” In September 2011, Haggenmiller listed “work until
retirement” as a short-range goal on her performance review, though she testified she
did not remember doing so.

      By June 2012, the last renewal term to the agreement between ABM and MAC
had expired, and they were operating on a month-to-month basis. MAC hired Lumin




      2
        According to Greg Frankhauser, ABM’s general manager at the MSP airport,
Haggenmiller’s primary responsibility was not auditing, but the data entry that came
afterward once the auditors had given her the paperwork. Frankhauser stated
Haggenmiller “did all kinds of miscellaneous [sic], whatever tasks came up.”
Haggenmiller insists she was an auditor, and says her termination review form which
listed her job title as “Administrative Assistant” was “[w]rongly titled.”


                                         -3-
Advisors (Lumin), an independent auditing and consulting firm, to perform an audit
of MAC’s “landside operations,” which included the MSP airport parking facilities.

       In the fall of 2012, ABM’s general manager left the company, and Greg
Frankhauser, who at the time was the general manager of ABM in the St. Louis
airport, became interim general manager at the MSP airport. In February 2013,
Frankhauser officially became the general manager. Frankhauser knew Haggenmiller
from when he worked at the MSP airport as ABM’s assistant general manager from
2008 through 2011. Frankhauser testified that as general manager he had no part in
Lumin’s audit, other than being interviewed about his own job duties.

        Lumin created an executive summary of the audit results, dated February 27,
2013, to present to the MAC finance group. Lumin made several recommendations
to help MAC “benefit from [new] technology,” including changes to personnel. One
of Lumin’s recommendations was to eliminate the “Administrative Assistant/Auditor
position”—Haggenmiller’s position—because new automation systems replaced the
need to manually enter the audit reporting information. Lumin also found the “new
payroll system” eliminated the need for the “ABM Payroll and Purchasing position,”
then occupied by the oldest ABM employee at the MSP airport, 64-year-old Monica
Martinson. Lumin additionally suggested hiring two roving shift managers, one for
first shift and one for second, to better address operational and customer needs on the
parking ramps and throughout the terminals. Lumin recommended having the shift
managers, instead of auditors, take over the daily cash counts to “reduce[] the number
of people involved in cash handling and free[] up the Auditors to audit.”

       The final Lumin audit report was presented to the MAC finance group in early
April 2013. Sometime afterward, Rick Decker, MAC Assistant Manager of Parking,
and Arlie Johnson, Assistant Airport Director of Landside Operations—the MAC
officials to whom Frankhauser reported—brought Frankhauser into Johnson’s office



                                         -4-
to discuss Lumin’s audit, the implementation of Lumin’s recommended changes, and,
specifically, the elimination of the payroll and administrative assistant/auditor
positions. Frankhauser testified he “had no choice” but to accept the changes MAC
requested. In total, Lumin made 96 recommendations to MAC, and MAC
implemented them all.

      A few days later, Frankhauser asked Decker if MAC was “firm” on eliminating
those positions, and Decker responded that they were and “wanted to make sure
[Frankhauser] enacted all of those changes.” At the time MAC made the
recommendation, they were unaware of which ABM employees were in the positions.
When Frankhauser called Decker back to tell him who was in the positions, he asked
to “confirm [if] there [was] any flux on this” and was told, “no.” Frankhauser then
requested written documentation so he could process approval of Haggenmiller’s
termination through ABM’s regional offices. Frankhauser also told Decker at some
point he would check to see “if there was anything else for [Haggenmiller and
Martinson], if we had something open.” Decker said that would be fine, as long as
Frankhauser did not create new positions.

       On April 12, 2013, Decker sent Frankhauser an email requesting that he
eliminate the audit administrative assistant and accounting clerk, begin searching for
two new shift managers “as soon as possible,” and look for a third to begin in August
of that year. Frankhauser testified he began to look for open positions for
Haggenmiller and Martinson beginning in May. He said he looked for “something
along the lines of office work, something that they had been accustomed to,” including
cashier and control room operator positions, but at the time, there was nothing open.

      Frankhauser submitted a Termination Review Form for the elimination of
Haggenmiller’s position to ABM’s regional human-resources office in Cleveland,
Ohio, which was approved on May 30, 2013, effective May 31. Under the section



                                         -5-
Explain Reason for Termination, the form stated, in part, “As a result of [the Lumin
audit] we have been instructed by the MAC to eliminate two positions that Lumin
Advisors felt had no impact on the parking operation,” and that the office was
“following the request of the MAC and Landside Operations in the elimination of
these two positions.” The form stated Haggenmiller’s current duties were the “ones
that no one will specifically absorb,” including “[m]ail distribution, setting out of the
daily tickets, SR entry, and other tasks [that] are currently ones in which [sic] different
people do now depending on who recognizes that it needs to be done.”

       On June 3, 2013, Frankhauser and Beth Sandeberg, a human resources manager
for ABM, met with Haggenmiller in Frankhauser’s office. They explained her job
was being eliminated due to Lumin’s audit and recommendations. Describing this
meeting, Haggenmiller testified she was told she “was terminated for business
reasons. I didn’t really understand. I was pretty upset.” She also said Frankhauser
told her there would be “a lot more [layoffs] in your auditing department and
throughout the company so you’re not the only one.” Shortly after, one of the new
shift managers started.3 The new shift manager was more than 30 years younger than
Haggenmiller.

       Frankhauser and Sandeberg terminated Martinson the next day. Of all the ABM
office employees who were working at the MSP airport at the time, Haggenmiller and
Martinson were the two oldest. On July 15, 2013, Sandeberg sent Haggenmiller an
email about a job opening for a cash specialist supervisor position at the ABM
location in downtown Minneapolis, but Haggenmiller testified she did not apply
because she could not meet the job’s lifting requirement. In addition, the deadline for
submitting applications for this position had expired.



      3
        Due to budget constraints, ABM’s search for additional shift managers was put
off until 2014.


                                           -6-
       B.     Procedural History
       In March 2014, Haggenmiller filed a claim against ABM in the Hennepin
County District Court. Haggenmiller alleged she was terminated based on age in
violation of the Minnesota Human Rights Act.4 See Minn. Stat. § 363A.08. ABM
removed the action to federal court. See 28 U.S.C. §§ 1332(a), 1441(b), and 1446.
ABM subsequently moved for summary judgment. See Fed. R. Civ. P. 56. The
district court granted summary judgment to ABM, and Haggenmiller timely appeals.

II.    DISCUSSION
       “We review de novo a district court’s grant of summary judgment.” Reynolds
v. RehabCare Grp. E., Inc., 

, 1032 (8th Cir. 2010). The grant of
summary judgment is appropriate when, viewing the record “in the light most
favorable to the to the non-moving party,” 

“the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a). While “‘the burden of
demonstrating the absence of any genuine issue of material fact rests on the movant,
a nonmovant may not rest upon mere denials or allegations, but must instead set forth
specific facts sufficient to raise a genuine issue for trial.’” Gibson v. Am. Greetings
Corp., 

, 853 (8th Cir. 2012) (quoting Wingate v. Gage Cty. Sch. Dist.,
No. 34, 

, 1078-79 (8th Cir. 2008)).

      The parties agree we analyze discrimination claims under the Minnesota Human
Rights Act under the same framework as claims under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-34. See Ramlet v. E.F. Johnson Co.,


      4
       Haggenmiller also alleged (a) ABM retaliated against her for filing a claim for
workers’ compensation benefits in violation of Minn. Stat. § 176.82; and (b) ABM
terminated her because of her disability, see Minn. Stat. § 363A.08. The district court
dismissed these claims in its summary judgment order, and Haggenmiller did not
appeal their dismissal.


                                         -7-


, 1152 (8th Cir. 2007). “An age discrimination plaintiff may survive
the defendant’s motion for summary judgment either by setting out direct evidence of
discrimination or by creating an inference of discrimination under the McDonnell
Douglas Corp. v. Green burden-shifting framework.” 

see
McDonnell Douglas Corp. v. Green, 

(1973); see also Dietrich v.
Canadian Pac. Ltd., 

, 324 (Minn. 1995). Without direct evidence of
age discrimination, Haggenmiller must establish a prima facie case by demonstrating
“‘(1) she is a member of a protected group; (2) she was qualified for her position;
(3) she was discharged; and (4) the discharge occurred under circumstances giving
rise to an inference of discrimination.’” Doucette v. Morrison County, 

,
982 (8th Cir. 2014) (quoting Elam v. Regions Fin. Corp., 

, 879 (8th Cir.
2010)).5

        ABM then has the opportunity to “‘articulate a non-discriminatory, legitimate
justification for its conduct, which rebuts [Haggenmiller’s] prima facie case.’”

(quoting 

). “If [ABM] articulates
such a reason, the burden returns to [Haggenmiller] to show [ABM’s] proffered reason
is pretextual.” McGinnis v. Union Pac. R.R., 

, 873 (8th Cir. 2007).
Under the Minnesota Human Rights Act, “‘even if an employer has a legitimate
reason for the [employment decision], a plaintiff may nevertheless prevail if an
illegitimate reason more likely than not motivated the decision.’” LaPoint v. Family
Orthodontics, P.A., 

, 892-93 (Minn. Ct. App. 2015) (alterations in
original) (omitting internal citation) (quoting McGrath v. TCF Bank Sav., 

, 366 (Minn. 1993)); cf. 29 U.S.C. § 623(a)(1) (federal age discrimination).




      5
        This standard applies to reduction-in-force (RIF) claims, where, as the district
court stated, “‘business considerations cause an employer to eliminate one or more
positions within the company,’” quoting 

.


                                          -8-
       The district court decided it “need not consider Haggenmiller’s prima facie
case, because, even assuming she satisfies it,” ABM proffered a legitimate reason for
her termination based on Lumin’s study and MAC’s instructions to ABM. The district
court rejected Haggenmiller’s attempts to show ABM’s reason was pretextual,
concluding “no reasonable jury could conclude” ABM’s “real motivation was age
discrimination.”

       On appeal, Haggenmiller argues the district court applied the wrong standard
to her claim by treating it as a failure to transfer claim, which she concedes she did not
plead. Cf., e.g., Doerhoff v. McDonnell Douglas Corp., 

, 1180-81 (8th
Cir. 1999) (“Although Doerhoff did not bring a failure to transfer claim . . . we note
that this does not prevent him from attempting to use MDC’s failure to transfer him
as evidence that the RIF was a pretext for age discrimination.”). Haggenmiller also
contends the district court disregarded evidence that sufficiently created an inference
of age discrimination on the part of ABM.

       Haggenmiller does not challenge ABM’s proffered reason for her
termination—that MAC directed Frankhauser to eliminate her position due to Lumin’s
audit. Rather, she argues ABM was not required to terminate her, just eliminate her
position. Haggenmiller claims that one of the reasons ABM used to justify her
termination was that there were no other open positions throughout the ABM
enterprise, which she argues was false and demonstrates pretext. See, e.g., Reeves v.
Sanderson Plumbing Prods., Inc., 

, 147 (2000) (“In appropriate
circumstances, the trier of fact can reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory purpose.”); Betz v.
Chertoff, 

, 933 (8th Cir. 2009) (“We agree that an employer’s false
explanation may support—though it does not require—an inference of
discrimination.”); Loeb v. Best Buy Co., 

, 873 (8th Cir. 2008) (“The
falsity of a nondiscriminatory basis for the employment action may also support a



                                           -9-
finding of pretext.”). ABM contends Haggenmiller “was clearly terminated solely
because of the audit, and incidentally, there were no positions for her to work in
ABM’s MSP office at the time her position was eliminated.”

       Although Frankhauser was under no obligation to find alternative employment
for Haggenmiller, cf. 

n.5, he asked Decker if he could
look for open positions for Haggenmiller and, after having received the direct order
to eliminate Haggenmiller’s position, went back to make sure MAC was “firm” on its
decision to eliminate her position. Frankhauser then looked for all “potentially open”
jobs, including ABM positions in the MSP airport, other ABM facilities, and part-time
jobs. Frankhauser went so far as to continue to look for jobs for Haggenmiller after
her termination.6 When asked why he would look for open jobs for Haggenmiller and
Martinson, Frankhauser explained there was “no reason not to have folks around that,
you know, that have the ability to do what they’re doing,” but ABM “didn’t have
anything” open. Haggenmiller testified that during her termination meeting, she was
told there were no jobs available. Haggenmiller also points out that in the section
“Explain Reason for Termination,” Martinson’s termination review form—but not
hers—stated, “A search both in parking and within the ABM enterprise and [sic]
found no other available positions for which they [sic].”



      6
        Once Frankhauser learned Haggenmiller hired an attorney, Frankhauser
testified his job search for her came “to a screeching halt.” Haggenmiller likens his
reaction to Smith v. URS Corp., 

, 971 (8th Cir. 2015), where we stated
a manager’s “seemingly defensive reaction” to allegations of discrimination could
support a jury’s finding of the defendant’s “desire to hide an impermissible motive.”
However, in Smith, this was only part of the evidence the plaintiff presented which
we found, when taken together, sufficient to support an inference of racial
discrimination. See 

Furthermore, in Smith, the manager in question had
falsely denied his involvement in an employee-ranking process, and the defendant
never contested that allegation. 

                                        -10-
       Haggenmiller alleges there were jobs open within the ABM enterprise in the
area, including an entry-level human resources administrative position at another
ABM location. ABM admits there were possibly jobs open in the downtown ABM
location and a janitorial position and some part-time union positions, which require
seniority preferences, at the MSP airport, but maintains the availability of open
positions was never provided as one of the reasons for Haggenmiller’s termination.
When asked about the entry-level position, Frankhauser testified he did not pass it on
to Haggenmiller and Martinson because he “would never have sent two people
[Haggenmiller and Martinson] for one job. That’s not right.”

       Haggenmiller claims Frankhauser’s failure to consider her for one of the shift
manager positions Lumin recommended creating “provides persuasive evidence that
ABM was not looking for open positions as it claimed to be.” Though a new shift
manager started around the same time Haggenmiller was terminated, Frankhauser said
ABM had begun the process of interviewing for those positions in March, and
Frankhauser “did not consider [Haggenmiller and Martinson] for that because [ABM]
had started the [interviewing] process.” Haggenmiller disputes the timeline, arguing
Frankhauser could not have had approval to begin the search for new shift managers
until he received Decker’s email on April 12. According to Frankhauser, however,
he did not begin looking for open positions for Haggenmiller and Martinson until
early May. Haggenmiller argues a jury would find Frankhauser’s reasons for not
considering her for the shift manager position “deficient” and “simply not true.” To
defeat summary judgment, Haggenmiller “‘must present affirmative evidence,’ not
simply contend that a jury might disbelieve [ABM’s] evidence.” Walton v.
McDonnell Douglas Corp., 

, 428 (8th Cir. 1999) (quoting Anderson v.
Liberty Lobby, Inc., 

, 257 (1986)); cf. 

(“[A]n
employer would be entitled to judgment as a matter of law if the record conclusively
revealed some other, nondiscriminatory reason for the employer’s decision, or if the
plaintiff created only a weak issue of fact as to whether the employer’s reason was



                                        -11-
untrue and there was abundant and uncontroverted independent evidence that no
discrimination had occurred.”).

       Applying the summary judgment standard, even if Haggenmiller has at least
created a weak issue of material fact as to whether there were open jobs at the time she
was terminated, she nonetheless readily concedes the alleged lack of other available
positions at ABM cannot reasonably be considered ABM’s sole justification for her
termination. Haggenmiller admitted she was told she was being fired “for business
reasons,” and that reasoning was clearly indicated on her termination review form.
Ultimately, the record does not support, and we think it unreasonable to surmise, that
ABM insinuated the lack of other available positions was in part why Haggenmiller
was terminated. Cf. 

(citing Furnco Const. Corp. v. Waters,

, 577 (1978) (“[W]hen all legitimate reasons for rejecting an applicant
have been eliminated as possible reasons for the employer’s actions, it is more likely
than not the employer, who we generally assume acts only with some reason, based
his decision on an impermissible consideration.” (emphasis added))); Taylor v. QHG
of Springdale, Inc., 

, 900-01 (8th Cir. 2000) (reasoning only where the
claimant has “produced sufficient evidence to reject the [employer’s] legitimate
explanation” would “additional independent evidence of discrimination” be
unnecessary to “defeat summary judgment”); see also 

.

      Haggenmiller maintains she presented sufficient evidence to support an
inference of age discrimination. To show ABM’s age bias, Haggenmiller offered two
age-related statements she argues the district court ignored. First, during her
deposition, Sandeberg admitted that it had “cross[ed] [her] mind” that by terminating
Haggenmiller and Martinson, ABM was terminating its two oldest employees at the
MSP airport. We agree with the district court’s conclusion that Sandeberg’s statement
was not indicative of age discrimination. See Bashara v. Black Hills Corp., 

, 824 (8th Cir. 1994) (explaining such “concern . . . should be regarded as a natural



                                         -12-
reaction to the ever-present threat of litigation attendant upon terminating an age-
protected employee”).

        Second, Haggenmiller wants us to consider a statement Frankhauser made to
Martinson that the district court apparently failed to address. According to Martinson,
in early 2013, she asked Frankhauser why some of her job responsibilities were being
taken away, and Frankhauser told her she would “never have to worry about [her]
job,” but later told her she should consider retirement, during the time period when he
was allegedly looking for other jobs for Haggenmiller and Martinson.7 Haggenmiller
testified she knew about the statements, but was not present during either conversation
and could not recall whether Frankhauser had ever made comments to any ABM
employee in the MSP airport about retirement. Reasonable inquires into retirement
are “not inherently discriminatory,” 

, and we are
unpersuaded that this remark demonstrates Frankhauser harbored age-related bias.
See also 

; Cox v. Dubuque Bank & Trust Co., 

,
497 (8th Cir. 1998) (recognizing employers may make “reasonable” inquiries about
employees’ retirement plans so long as they are not “unnecessary and excessive . . .
[so] as to constitute evidence of discriminatory harassment”). But cf. Fisher v.
Pharmacia & Upjohn, 

, 923 (8th Cir. 2000) (recognizing some “[s]tray
remarks” relating to age may be relevant circumstantial evidence of age
discrimination).

      Haggenmiller argues the district court misapplied the summary judgment
standard by not making inferences in her favor. Specifically, she takes issue with the


      7
       Martinson filed her own claim for age discrimination against ABM that
survived summary judgment. See Martinson v. ABM Parking Servs., Inc., No. 14-
CV-0870, 

, at *2 (D. Minn. Aug. 13, 2015). Haggenmiller
submitted excerpts from Martinson’s deposition as one of her exhibits to her
memorandum in opposition to summary judgment.


                                         -13-
district court’s opinion that Haggenmiller’s positive performance reviews “suggested
ABM regretted firing her and only did so because of the Lumin study”; instead,
Haggenmiller suggests her performance reviews support her theory that ABM’s
decision to eliminate her was not “automatic, inevitable, or immediate.” While
Frankhauser’s testimony may support either finding, it is imperative at this stage that
the district court make all reasonable inferences in Haggenmiller’s favor and not
weigh the evidence. See, e.g., 

. At the same time, we disagree
with the notion that even though Haggenmiller’s position was eliminated, losing her
job in the wake of the Lumin audit was not inevitable. And ABM was not obligated
to find an open position for her.

       Haggenmiller also asserts the district court erred by not considering the
significance of the fact that she and Martinson were the oldest ABM employees at the
MSP airport and were both terminated. Haggenmiller points to the district court’s
statement that “nearly everybody was around the same age as Haggenmiller,” because
nine of the ten ABM employees in the MSP airport were over 40, and eight were over
50 years old. Neither of these facts alone supports a conclusion one way or another
that ABM discriminated on the basis of age, and we are unconvinced the district court
considered the ages of everyone in the office as conclusive proof that ABM did not
discriminate. See 

.

       Finally, for the first time, Haggenmiller alleges ABM failed to disclose “the
role it played in the selection of Haggenmiller and Martinson’s positions for
elimination” and falsely “insisted that it had no influence or impact on Lumin’s
recommendation to eliminate Haggenmiller’s position.” Because Haggenmiller did
not present this argument before the district court, we do not consider it here. See
Eagle Tech. v. Expander Americas, Inc., 

, 1138 (8th Cir. 2015).




                                         -14-
III.   CONCLUSION
       Viewing the evidence in the light most favorable to Haggenmiller, the district
court did not err in granting summary judgment to ABM. Haggenmiller did not meet
her burden of establishing a genuine issue of material fact that ABM’s proffered
legitimate reason for her termination was pretext for age discrimination. See 

. We affirm.
                         ______________________________




                                         -15-