John D. BAUCOM, Jr., Appellant, v. HOLIDAY COMPANIES; Holiday Stationstores, Inc., Appellees, 428 F.3d 764

RILEY, Circuit Judge. John D. Baucom, Jr. (Baucom), sued his employer, Holiday Companies and Holiday Stationstores, Inc. (Holiday), for discrimination, retaliation, and hostile work environment under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), and the equivalent Minnesota statute, the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363A.08, subd. 2(c). The district court granted Holiday’s motion for

summary judgment, and Baucom appeals the decision except with regard to his hostile work environment claim. Because Baucom failed to show his slight reduction in hours, his negative performance reviews, and his allegations of being treated differently than younger employees amounted to adverse employment actions as a matter of law, we affirm the district court. I. BACKGROUND The facts relevant to this appeal are as follows. Baucom, a 68-year-old man who suffers from chronic back and heart problems, is an assistant manager at a convenience store owned by Holiday.

Baucom alleges his store manager, at the direction of Holiday’s district manager, cut Bau-com’s working hours in 2002 from his regular 43-45 hours per week range. The district manager allegedly told the store manager Baucom’s age and health were a hindrance, and the store manager should reduce Baucom’s hours in order to force Baucom to quit. Baucom complained about his hours upon returning from a vacation in October 2002, and Holiday temporarily restored his hours in November 2002.

Baucom alleges his hours again were reduced throughout 2003 to “consistently ... less than 40 hours per week.” In late 2002 and early 2003, Baucom’s store manager called Baucom a slow old man and said his grandmother could move faster and she has been dead for over seven years. Baucom overheard his store manager telling other employees, because of Baucom’s age and disability, he wanted to find a way to make Baucom quit. The store manager changed Baucom’s

schedule from working mornings with Sundays off to working evenings and weekends. The store manager also sent Baucom an e-mail message criticizing his performance. On May 5, 2003, Baucom filed a charge of discrimination with the Equal Employment Opportunity Commission and the Minnesota Department of Human Rights alleging age and disability discrimination. Four days later, Holiday gave Baucom four corrective action notices for events from earlier dates in 2003.

Holiday also informed Baucom he had failed a “tobacco sting” when he neglected to request identification from a young person purchasing tobacco, and as a result, Baucom had to undergo remedial training. Baucom alleges the district manager often had telephoned other employees to warn them of impending sting operations. In August 2003, Holiday gave Baucom another corrective action notice for failing to provide adequate documentation for medically related work absences. Baucom alleges he had provided adequate notice. On October 13, 2003, Baucom served Holiday with his complaint initiating this lawsuit.

In November 2003, Baucom’s store manager reviewed Baucom’s performance and rated him “below standard.” Following additional training, the store manager noted improvement and granted Baucom a pay raise. Baucom remains in Holiday’s employ. II. DISCUSSION Our standard for reviewing a district court’s grant of

summary judgment is a familiar one. We review a district court’s grant of

summary judgment de novo, applying the same standards as the district court. McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.1995). We will affirm the

summary judgment if the evidence, viewed in the fight most favorable to Baucom, demonstrates there is no genuine issue as to any material fact and Holiday is entitled to judgment as a matter of law. Id. There is no genuine issue of material fact if the evidence is such that a reasonable jury could not return a verdict for Baucom. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Baucom may not rely on “mere allegations,” but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Furthermore,

summary judgment must be entered against Baucom if he “fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] bear[s] the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Without direct evidence of discrimination, ADA, ADEA, and MHRA claims are evaluated under the McDonnell Douglas burden shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.2003); Longen v.

Waterous Co., 347 F.3d 685, 688 (8th Cir.2003). Under this framework, the employee bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s actions. Id. If the employer articulates such a reason, the burden returns to the employee to show the employer’s justification is a pretext. Id. at 804, 93 S.Ct. 1817.

Under the ADA, ADEA, and MHRA, a necessary element of establishing a prima facie case of discrimination is setting forth facts demonstrating the employee suffered an adverse employment action. Chambers, 351 F.3d at 855; Longen, 347 F.3d at 688. An employee suffers an adverse employment action when there is a “tangible change in duties or working conditions” constituting “a- material employment disadvantage.” Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir.2003) (citation omitted). Our decision in Kerns v.

Capital Graphics, Inc., 178 F.3d 1011, 1016-17 (8th Cir.1999), provides: The adverse employment action must be one that produces a material employment disadvantage. Termination, cuts in pay or benefits, and changes that affect an employee’s future career prospects are significant enough to meet the standard, as would circumstances amounting to a constructive discharge. Minor changes in duties or working conditions that cause no materially significant disadvantage do not meet the standard of an adverse employment action, however. (citations and quotations omitted).

Baucom argues his hours were cut in 2002 and 2003 from his normal 43-45 hours per week range to hours now “consistently ... less than 40 hours per week,” resulting, because of overtime pay Baucom was earning for his hours worked over 40 per week, in a 20% cut in take home pay. Baucom’s argument fails for two reasons. First, Baucom fails to set forth any facts demonstrating Holiday decreased his hours rather than Baucom himself decreasing them as a result of his voluntarily taking vacation and sick leave.

Second, even if such facts were present in the record, the slight decrease in hours does not constitute as a matter of law an adverse employment action, because the decrease did not produce a material employment disadvantage. The record regarding Baucom’s average hours worked in 2002 and 2003 shows a fluctuating

schedule with a slight overall decreasing trend. The trend shows neither a break point (when Baucom had been working over 40 hours then suddenly he began working significantly less than 40), nor does it show a steady decrease over the two years. Rather, the data reflects a normal retail employee’s schedule, with many peaks and valleys and rarely the same hours worked in consecutive weeks. Baucom’s hours worked per week in August and September 2002 are indicative of this fluctuation: 40,’ 43, 40, 31, 39, 36, 51, 30, 43.

By comparison, the months of March and April 2002, before Baucom’s relevant claim period, show similar fluctuation: 45, 44, 35, 53, 35, 44, 41, 44; Holiday asserts, and Baucom does not deny, Baucom took several medically related absences in 2003, including instances in February, April, May, September, and October. These absences account for most of the' valleys in Baueom’s 2003 hours and explain the slight overall average decrease. Holiday also explains it instituted a company wide policy to decrease labor costs affecting all employees, including Baucom.

These two explanations best fit in the second step in the McDonnell Douglas burden shifting, analysis (Holiday’s legitimate nondiscrimatory reasons for. Baucom’s decreased hours); nevertheless, they do illuminate the muddled record regarding Bau-com’s average hours worked. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (“The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic.

Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.”) (internal quotations omitted). On this limited record, we cannot conclude Baueom has met his burden of setting forth specific facts demonstrating he suffered an adverse employment action. Even if Baueom could set forth facts demonstrating Holiday decreased his hours, the slight decrease is not materially significant. See Kerns, 178 F.3d at 1016-17. In 2002, Baueom averaged less than 40 hours per week in only three months.

During those three months, he averaged 38.6, 39, and 38 hours. Furthermore, Bau-com conceded during his deposition any scheduling limitation was corrected by November 2002. In 2003, the data provided by Baueom shows a slight decrease in average hours worked, but that average hovers around 38 or 39 hours. We do not consider such a minor decrease in scheduled hours for a person working in a retail setting to be a material change, especially when the hours consistently remain at a full-time level. The district court correctly held no reasonable juror could conclude this amounted to an adverse employment action.

Baueom also argues his many disciplinary warnings and his negative performance review constituted adverse employment actions because these actions affect his future career prospects with Holiday. If Baucom’s argument were correct, any negative performance evaluation, because it undoubtedly reflects poorly on the employee and potentially negatively affects his future prospects with the employer, would itself constitute an adverse employment action.

But we have clearly held “[a] negative performance review is not in itself an adverse employment action, ... and it is actionable only if the employer subsequently uses that review to alter the terms or conditions of employment to the detriment of the employee.” Burchett, 340 F.3d at 518. Baueom alleged no actions by Holiday as a result of the warnings or the performance review that altered the terms of Baucom’s employment. The district court therefore correctly concluded Baucom’s warnings and review did not constitute adverse employment actions.

Finally, Baueom alleges Holiday treated him differently than younger employees, amounting to an adverse employment action, including disciplining him for finding replacements on short notice, disciplining him for cash drawer shortages, and not warning him before a tobacco sting. He provides no evidence of specific events when younger employees were treated differently. Thus, while we must view the facts in a light most favorable to Baueom, “mere allegations which are not supported with specific facts are not enough to withstand [a] motion” for

summary judgment. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir.1999). III. CONCLUSION Baueom fails to set forth facts demonstrating he suffered an adverse employment action. We therefore affirm the district court’s grant of Holiday’s

summary judgment motion. Because the element of adverse employmeht action is dispositive as to all of Baucom’s claims, we need not address his remaining arguments. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. . The Honorable David S. Doty, United States District Judge for the District of Minnesota. . Baucom filed his initial charge of discrimination on May 5, 2003.

Under the three-hundred-day statute of limitations period under the ADA and ADEA, see 42 U.S.C. § 12117(a), 29 U.S.C. § 626(d), and the one-year limitations period under the MHRA, see Minn.Stat. § 363A.28, subd. 3, Baucom’s claims based on conduct that occurred before July 10, 2002, and May 5, 2002, respectively, are time-barred. See Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir.2003).