This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).

UNPUBLISHED OPINION

KALITOWSKI, Judge.

Appellant Dean C. Suneson sued respondent Northern Tool and Equipment Company for age discrimination after respondent terminated his employment. On appeal from a grant of summary judgment to respondent, appellant argues that the district court erred in determining that (1) there were no genuine issues of material fact; (2) appellant failed to establish a prima facie case of age discrimination; and (3) respondent's proffered reason for terminating appellant was not a pretext for discrimination. We affirm.

DECISION

On an appeal from summary judgment, this court makes two determinations: "(1) whether there are any genuine issues of material fact and (2) whether the [district court] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court must "view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But "the party resisting summary judgment must do more than rest on mere averments." DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Summary judgment is appropriate if the nonmoving party has the burden of proof on an issue and does not present " sufficient evidence to permit reasonable persons to draw different conclusions." Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006). If there are no genuine issues of material fact, this court will review the district court's application of law de novo. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

I.

Appellant argues that the district court viewed disputed evidence in the light most favorable to the moving party (respondent), and improperly resolved material facts. Appellant cites several examples from the district court's summary judgment order to support this argument. Because the fact disputes resolved by the district court in its order would not affect the outcome in this case, we conclude that summary judgment was appropriate.

"The district court's function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist." DHL, 566 N.W.2d at 70. But caselaw establishes that summary judgment is proper if "there is no genuine issue of material fact. . . ." Fabio, 504 N.W.2d at 761 (emphasis added). A fact is material if its resolution would affect the outcome of the case. Rathbun v. W.T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974).

The most glaring example of the district court's errors, according to appellant, was the court's adoption of respondent's position that appellant engaged in daily sexual harassment of a coworker. But the issue here is not whether appellant actually engaged in the behavior, but whether respondent had a genuine belief that appellant had engaged in misconduct. Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004); Harvey v. Anheuser-Bush, Inc., 38 F.3d 968, 973 (8th Cir. 1994); Curtis v. Medtronic, Inc., 1996 WL 731 (Minn.App. Jan. 2, 1996) (quoting Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991) ("[t]he inquiry of the ADEA is limited to whether [the employer] believed that [the employee] was guilty of harassment and if so, whether this belief was the reason behind [employee's] discharge")). It is undisputed that a coworker complained to respondent about appellant's behavior, and that respondent conducted an investigation into the matter. Thus, the district court's finding that appellant actually engaged in the behavior is not a material fact.

Because none of appellant's references pertain to material disputed facts in this matter, we conclude that the district court did not commit reversible error by adopting respondent's version of some of the facts disputed by appellant.

II.

Under the Minnesota Human Rights Act (MHRA), an employer commits an unfair employment practice if the employer discharges or otherwise discriminates against an employee because of the employee's age. Minn. Stat. § 363A.08, subd. 2 (2004). A plaintiff may prove discriminatory intent either by direct evidence or by circumstantial evidence in accordance with the three-part McDonnell-Douglas burden-shifting test. Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001). Under the McDonnell-Douglas test, "the plaintiff alleging a discriminatory employment practice must first make out a prima facie case of discrimination." Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)). The plaintiff must show that he "(1) is a member of [a] protected class; (2) was qualified for the position from which he was discharged; and (3) was replaced by a non-member of the protected class." Id. (quotation omitted). If the plaintiff is successful, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. Id. at 545. Once the employer meets this burden, the employee must establish that the proffered reason is a pretext for discrimination. Id. If the employee fails to meet his burden under either the first or third step of the McDonnell-Douglas test, summary judgment is proper. Furthermore, "at all times the employment discrimination plaintiff retains the burden of establishing that the defendant's conduct was based on unlawful discrimination." Id. at 546.

Appellant argues that the district court erred in determining that he did not establish a prima facie case of age discrimination. We agree.

Citing statistical evidence regarding the age distribution of other employees at Northern Tool, the district court determined that appellant had not made out a prima facie case of age discrimination. But statistical evidence is not relevant to the prima facie determination in a disparate treatment case by an individual. See Hoover, 632 N.W.2d at 542 (listing the requirements of a prima facie case). Appellant has produced evidence that (1) he is within the protected class; (2) he was qualified for his position as a sales representative for Northern Tool; (3) he was discharged; and (4) he was replaced by someone younger. Although respondent disputes appellant's contention that the younger employee actually "replaced" appellant, there is at least a fact question on this point. Thus, viewing the facts in the light most favorable to the party against whom judgment was granted, we conclude that appellant has met his burden of establishing a prima facie case of age discrimination.

III.

Once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. Hoover, 632 N.W.2d at 545. If the employer meets this burden, the employee must then establish that the proffered reason is a pretext for discrimination. Id. "[T]he plaintiff has the burden of persuading the court by a preponderance of the evidence that the employer intentionally discriminated against [him]." Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). The plaintiff may meet this burden "either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (quotation omitted). "To prove pretext, the employee must do more than show that the employment action was ill-advised or unwise, but rather must show that the employer has offered a `phony excuse.'" Henderson v. Ford Motor Co., 403 F.3d 1026, 1034 (8th Cir. 2005) (quotation omitted).

Here, respondent terminated appellant following an investigation into allegations by a female coworker that appellant was frequently harassing her. The record includes the depositions of the coworker and several other employees documenting the allegations and the investigation. A human resources manager for respondent concluded that appellant had violated respondent's sexual harassment policy, and she and two managers made the decision to terminate him. A separation report filed the same day indicates that appellant was discharged for inappropriate behavior in violation of the company harassment policy. Thus, we conclude that the district court properly determined that respondent offered a legitimate, nondiscriminatory reason for appellant's termination.

Appellant contends that he raised genuine issues of material fact regarding whether this reason was a pretext for age discrimination. We disagree. Appellant puts forth three arguments in an attempt to establish pretext: (1) that respondent's own documentation demonstrates that it did not believe that appellant engaged in sexual harassment; (2) that the barrage of "ageist" comments appellant claims he was subjected to is probative of age discrimination; (3) that a similarly-situated younger employee was treated differently; and (4) that the district court applied the wrong standard in its pretext analysis. These arguments are without merit.

Appellant offers some inconsistencies in respondent's documentation of the investigation and termination of appellant as evidence of pretext. Appellant points out that in some instances, the reason given for termination is "inappropriate behavior," while other company documents refer specifically to a violation of respondent's harassment policy. We conclude that although the documentation of respondent's investigation of appellant could have been clearer, the record does not indicate that the investigation and the decision to terminate appellant resulted from anything other than the female employee's allegations of sexual harassment.

Appellant maintains that he was subjected to a litany of ageist comments by other Northern Tool employees and that these comments demonstrate age-based animus. But only one of the comments appellant identifies was made by a decisionmaker, and that comment was not made in connection with the decision to terminate appellant. Accordingly, these stray comments are not persuasive evidence that respondent's proffered reason was a pretext for age discrimination. See Hitt v. Harsco Corp., 356 F.3d 920, 925 (8th Cir. 2004) (allegedly discriminatory comments "are not persuasive evidence of motive when the remarks are made by persons other than a decisionmaker."); Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1157 (8th Cir. 1999) (holding that the court must distinguish remarks "which demonstrate a discriminatory animus in the decisional process from . . . statements by decisionmakers unrelated to the decisional process").

Appellant maintains that the fact that a younger employee who violated the sexual harassment policy was not discharged establishes that respondent's reason for terminating appellant was pretextual. We disagree. The situations are distinguishable. Appellant points to a younger employee who was involved in a dispute with a female coworker during which he used offensive language. Rather than involve the human resources department, respondent dealt with the argument by having an assistant manager talk to both parties and essentially having them work it out between themselves, a resolution both found satisfactory. Here, the female coworker who accused appellant of sexual harassment told respondent, "either he goes or I go." Because these situations are not comparable, appellant's argument fails.

Appellant argues that the district court erred in requiring appellant to show both that respondent's proffered reason for appellant's discharge was false and that the real reason was his age. But as discussed above, appellant has failed to present either direct evidence of age discrimination or indirect evidence that the sexual harassment investigation was a pretext for discrimination. Thus, appellant's argument fails.

Finally, the district court properly found that the statistical evidence produced by respondent undermines appellant's argument. Appellant was hired at age 47 and discharged at age 49. At respondent's store where appellant worked, there were eight employees older than appellant when he was terminated, including four employees over 60 years of age and one employee over 70 years of age. Four employees in the same position were older than appellant. Thus, the district court correctly determined that the record does not support appellant's claim that respondent's proffered reason for terminating him was a pretext for age discrimination.

We conclude that appellant has not raised a genuine issue of material fact that respondent terminated him because of his age. Therefore, although the district court erred in finding that appellant failed to establish a prima facie case of age discrimination, summary judgment was appropriate because appellant did not produce evidence showing that respondent's legitimate, nondiscriminatory reason for terminating appellant's employment was a pretext for discrimination.

Affirmed.