F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
CLIFTON D. BAUCOM,
Plaintiff - Appellant,
v. No. 96-2130
(D.C. No. CIV-94-1454-LH)
AMTECH SYSTEMS (District of New Mexico)
CORPORATION, a foreign
corporation,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, MCWILLIAMS and LUCERO, Circuit Judges.
Appellant, Clifton Baucom, brought suit against his previous employer,
Amtech Systems Corporation (“Amtech”), alleging discrimination in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634,
and pendent state law claims of breach of contract, breach of the covenant of
good faith and fair dealing, promissory estoppel, and negligent misrepresentation.
The district court granted summary judgment in favor of Amtech as to all claims.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Baucom now appeals. We exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
We review the district court’s ruling on Amtech’s summary judgment
motion de novo. Cone v. Longmont Hosp. Ass’n, 14 F.3d 526, 527-28 (10th Cir.
1994). We review the record in the light most favorable to Baucom, the party
opposing summary judgment. Bolton v. Scrivner, Inc., 36 F.3d 939, 941 (10th
Cir. 1994). Summary judgment should be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
I
In June 1988, Amtech hired Baucom as a manufacturing manager for its
New Mexico manufacturing facility. (Appellant’s App. at 198-202). Baucom’s
evaluations from 1989 to 1992 indicate that he consistently met or exceeded
Amtech’s performance expectations. (Id. at 378-94). On January 12, 1993,
shortly after Amtech hired Lee Brezik as its new vice president of manufacturing,
Brezik transferred Baucom to the position of manufacturing engineer manager.
(Id. at 204).
After his transfer, Baucom received several unfavorable evaluations from
Brezik over the course of a year. (Id. at 144, 147-49, 153-55, 205, 208-09.)
-2-
Brezik told Baucom that Baucom would be terminated if his performance did not
improve. (Id. at 170.) According to Baucom, Brezik’s judgments were unfair.
Further, Baucom believes that Brezik sought to replace older employees with
“younger less expensive employees.” Appellant’s Br. at 9. In September 1993,
Baucom overheard Brezik say that Baucom was “getting old and set in his ways”
and would not be around much longer. Appellant’s App. at 132.
In mid-December 1993, Baucom attended a meeting to discuss a safety
problem in the production area. During that meeting, he made comments to the
safety manager that installing safety devices to prevent injuries would be a waste
of time and money and that if an injury occurred, it would be the employee’s own
fault. (Id. at 189-93.) The safety manager sent Brezik a memo expressing
concern over Baucom’s attitude toward safety on the manufacturing floor. (Id. at
260-61.) In his deposition, Brezik testified that Baucom’s response to the safety
problem was the “last straw.” Id. at 266. According to Brezik, as a result of
Baucom’s comments and his failure to perform his job properly, Brezik concluded
that Baucom should be terminated. (Id. at 267). Amtech terminated Baucom in
January 1994, at the age of 58.
II
The ADEA prohibits an employer from “discharg[ing] any individual or
otherwise discriminat[ing] against any individual with respect to his
-3-
compensation, terms, conditions, or privileges of employment, because of such
individual’s age . . . .” 29 U.S.C. § 623(a)(1). To prevail, an ADEA plaintiff
must prove “that age was a ‘determining factor’ in the employer’s challenged
decision.” Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996)
(internal citations omitted). The plaintiff is not required to demonstrate that age
discrimination was the sole reason for the employer’s acts, but it must have
“‘made the difference’ in the employer’s decision.” Id. (internal citations
omitted).
An ADEA plaintiff may establish a prima facie case under the framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), by
demonstrating that (1) he was within the protected class; (2) he was doing
satisfactory work; (3) he was discharged in spite of the adequacy of his work; and
(4) a younger person replaced him. See Greene, 98 F.3d at 558 (citations
omitted). 1 Amtech asserts that Baucom is unable to establish elements
(2) or (3) of the prima facie case because he was fired for substandard work
performance. (Appellee’s Br. at 14 n.1.) We disagree. Baucom produced a
1
Alternatively, an ADEA plaintiff may carry his burden directly “by presenting
direct or circumstantial evidence that age was a determining factor in his discharge.”
Greene, 98 F.3d at 557 (quoting Lucas v. Dover, 857 F.2d 1397, 1400 (10th Cir. 1988)).
Although the appellant does not attempt to rely on this method of proof, we note that the
appellant’s evidence could be characterized as “direct or circumstantial evidence” of age
discrimination. As discussed below, however, the manner in which the appellant’s
evidence is characterized in this case does not affect the analysis or the result.
-4-
series of evaluations which indicate Amtech was satisfied with his performance
for a number of years prior to the incidents giving rise to this suit. (Appellant’s
Br. at 21; Appendix at 378-94.) Even when an employer claims to have
discharged an employee for poor performance, “a plaintiff may make out a prima
facie case of discrimination in a discharge case by credible evidence that . . . [he]
had held [his] position for a significant period of time.” MacDonald v. Eastern
Wyo. Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir. 1991) (citation omitted).
We do not address the employer’s stated reason for discharge at the prima facie
stage. Id. at 119-21.
Plaintiff’s establishment of a prima facie case gives rise to a presumption
that Amtech unlawfully discriminated. See Greene, 98 F.3d at 558 (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). The burden then shifts to
Amtech to rebut the presumption of discrimination by “articulat[ing] a facially
nondiscriminatory reason for the adverse employment decision.” Marx v.
Schnuck Mkts., Inc., 76 F.3d 324, 327 (10th Cir. 1996) (citation omitted).
Amtech contends Baucom was discharged because of his deficient work
performance, which is a facially nondiscriminatory reason for severing the
employment relationship.
Consequently, in order to avoid summary judgment, Baucom must “show
that there is a genuine dispute of material fact as to whether the employer’s
-5-
proffered reason for the challenged action is pretextual—i.e. unworthy of belief.”
Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995), cert. denied, 116 S.
Ct. 2552 (1996). For summary judgment purposes, a plaintiff makes an adequate
showing of pretext by demonstrating “that a discriminatory reason more likely
motivated the employer or . . . that the employer’s proffered explanation is
unworthy of credence.” Marx, 76 F.3d at 327-28 (internal quotations omitted).
Baucom contends that Amtech’s stated reason is pretextual for the
following three reasons: (1) Baucom allegedly overheard his supervisor, Lee
Brezik, “tell another employee that Baucom was too old and set in his ways and
that Baucom would not be around much longer,” Appellant’s Br. at 8; (2) Brezik
allegedly had a plan under which Baucom “and other employees who had built up
the company [would be] terminated . . . and replaced by younger less expensive
employees,” id. at 9; and (3) Brezik’s criticisms of his work were “baseless and
inaccurate” and his history of favorable evaluations shows satisfactory work
performance, id. at 9-10.
Regarding Baucom’s first claim, we have previously stated that “[a]ge-
related comments referring directly to the worker may support an inference of age
discrimination.” Cone, 14 F.3d at 531 (internal quotations omitted). Not all
remarks support an inference of discrimination, however. Certain comments may
be so isolated or ambiguous that they are “too abstract . . . to support a finding of
-6-
age discrimination.” Id. (internal quotations omitted). Although the comment at
issue here is troubling because it was allegedly made by Baucom’s supervisor and
referred directly to Baucom, see Tomsic v. State Farm Mut. Auto. Ins. Co., 85
F.3d 1472, 1479 (10th Cir. 1996), it was a single, isolated comment. Brezik
allegedly made the comment three months prior to the decision to fire Baucom,
and there is no evidence of any other age-related remarks.
Based on the isolated nature of the comment and its remote timing in
relation to the adverse employment decision, we conclude that Brezik’s statement
was a “stray remark” from which we may not infer discriminatory animus because
the plaintiff has not demonstrated a nexus between the alleged discriminatory
comment and the adverse employment decision. 2 See Cone, 14 F.3d at 531; see
also Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (holding
that supervisor’s statements that plaintiff was an “old fart” and that a younger
person could do the work better was insufficient to establish an age
discrimination claim).
2
As noted earlier, our analysis and result are unchanged whether the appellant’s
evidence is characterized as “direct or circumstantial evidence” of discrimination, or
evidence of pretext under the McDonnell Douglas framework. See Smith v. Horner, 839
F.2d 1530, 1537 n.11 (11th Cir. 1988). For the same reasons that we reject the
appellant’s arguments that this comment supports a showing of pretext on the part of
Amtech, we also find that the appellant has failed to present “sufficient evidence [of
discrimination] . . . for a jury to return a verdict” in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
-7-
Baucom’s second argument concerning pretext is that Brezik had a plan “to
get rid of” all of the people who had helped build the company. Appellant’s App.
at 441-442. As the sole support of this theory, Baucom points to the firing of
Scott Johannsen, another employee in his mid-fifties, in May 1993. (Appendix at
270, 442.) Although evidence of a pattern of age-related firings would be
sufficient to defeat summary judgment, see Greene, 98 F.3d at 561, Baucom has
not provided evidence of such a pattern.
In Greene, the plaintiffs survived summary judgment by demonstrating that
eight older executives left the company “virtually en masse.” Id. at 560. Here,
there is evidence of one other discharge approximately seven months prior to the
appellant’s own. The only indication that these two dismissals are related is the
appellant’s bald assertion that Lee Brezik had a private agenda to eliminate the
older employees. To survive summary judgment, however, a plaintiff must
present more than conclusory allegations attacking the validity of the defendant’s
justification. See Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1417
(10th Cir. 1993). The appellant offers no other evidence that his termination was
linked to Johannsen’s and any extrapolation from Johannsen’s termination would
be pure speculation.
Finally, Baucom challenges the validity of his poor performance
evaluations as evidence of pretext. Although the length of Baucom’s tenure is
-8-
sufficient to establish a prima facie case, he does not necessarily avoid summary
judgment by establishing his prolonged service for Amtech. See MacDonald, 941
F.2d at 1121. There is significant evidence that Baucom’s job performance was
problematic over the course of his final year. Six months prior to his termination,
he was warned that he would be terminated if he did not “straighten things up.”
Appellant’s App. at 170. There is evidence of continuing problems with the
accuracy of reports coming out of Baucom’s department. (Id. at 187.) He does
not dispute that such problems existed; he merely states that Brezik exaggerated
their significance. (Id.) The appellant also admits that he had missed required
meetings. (Id. at 194-96; 461.) Finally, the event that precipitated his discharge
occurred at a meeting concerning safety issues when the appellant made
extraordinarily callous remarks reflecting a total disregard for the safety of other
employees. Again, Baucom does not deny making such statements. Rather, he
argues that he was being sarcastic, and that he made “some bad choices of words
in some areas.” Appellant’s App. at 190. 3
Given the evidence presented by Amtech in support of its articulated reason
of substandard performance, the appellant’s argument that it was a pretext is not
3
As one example, John Eberly, who was in charge of safety, reported in a
memorandum to Lee Brezik that the appellant stated: “Putting in a reversal switch to
prevent someone’s hand or arm from being crushed is not worth $2,000.” Appellant’s
App. at 261. Again, the appellant admits making the statement but suggests it was not
serious because he had already planned to order the switches. (Id. at 191.)
-9-
compelling. First, the appellant claims that Brezik alone had targeted him for
termination, (Id. at 143), but the record contains memoranda from two other
employees complaining about the appellant’s performance. (Id. at 260 (Memo
from John Eberly to Lee Brezik concerning the statements the appellant made
about the CATTS Safety Hazard); App. at 262 (Memo from Tom Bolson to the
appellant complaining that no progress is being made on the acquisition of an
inspection/work table)). Second, Baucom does not contest that there were
problems with his performance, that such problems had been brought to his
attention, that he had missed meetings, or that he made remarks demonstrating a
lack of concern for safety issues. He merely reiterates that Brezik had a plan to
get rid of older employees. That is not enough. See Martin, 3 F.3d at 1417.
Moreover, Baucom’s testimony that Brezik was unduly critical of his performance
is not sufficient to show pretext. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1324
(10th Cir. 1997).
Even when viewed in a light most favorable to the appellant, see Kaul v.
Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996), the evidence does not show a
genuine issue of material fact regarding whether Amtech’s proffered reasons for
the challenged action were pretextual. On the contrary, the record leaves us with
the firm impression that Baucom’s termination resulted from quarrels over
performance deficiencies rather than from ageist discrimination.
-10-
III
Baucom argues that he had an implied employment contract with Amtech
which entitled him to progressive discipline and dismissal only for cause. He
bases this claim on Amtech’s Employee Handbook and Amtech’s Guide to
Performance Planning and Reporting, as well as statements made to him by
company employees.
A
Under New Mexico law, in the absence of an express or implied contract
providing otherwise, an employee is presumed to be “at-will.” Hartbarger v.
Frank Paxton Co., 857 P.2d 776, 779 (N.M. 1993). “An at-will employment
relationship can be terminated by either party at any time for any reason or no
reason, without liability.” Id. An employee may rebut the presumption of at-will
employment by demonstrating the existence of “an implied contract term that
restricts the employer’s power to discharge.” See Kiedrowski v. Citizens Bank,
893 P.2d 468, 471 (N.M. Ct. App. 1995) (internal quotations omitted).
When he started working for Amtech, Baucom was given an employee
handbook with a “progressive discipline” provision, stating that in most cases
employee discipline would comply with the following successive steps: “1. Verbal
warning; 2. Written warning; 3. Suspension without pay; 4. Termination.”
Appellant’s App. at 241. The provision also states, however, that “any step can
-11-
be skipped depending on the case history and/or the seriousness of the deficiency
or offense.” Id. Further, “[i]n the case of . . . serious breaches, the Company may
terminate employment immediately.” Id. According to Baucom, Amtech’s human
resources representative, Carol Kessler, told him he could be fired only “for
cause” at the time she gave him the employee handbook. (Id. at 122, 276.) He
also claims that an Amtech executive, Gary Seawright, stated to Baucom that he
would “like to see some key people . . . grow with the company.” Id. at 123.
Based on the progressive discipline policy and the comments by Seawright and
Kessler, Baucom thought he could be terminated only for cause.
Amtech argues that regardless of any oral comments, the written handbook
clearly explains that all employees are at-will employees, with no right to
progressive discipline. Indeed, the handbook contains an “Employment At Will”
provision, which provides:
In the absence of a separate written contract, employment at Amtech
. . . is considered “at will.” This means the employee or the company
can terminate employment at any time. . . . [T]he Company shall try
to give employees advance notice of termination except for cases
involving misconduct or gross negligence.
Appellant’s App. at 221.
Although New Mexico courts have upheld the validity of such disclaimers,
they have refused to do so “where the employer’s conduct reasonably leads
employees to believe that they will not be terminated without just cause and a fair
-12-
procedure.” Kiedrowski, 893 P.2d at 471. The disclaimer “must be read by
reference to the parties’ norms of conduct and expectations founded upon them.”
Id. (internal quotations omitted). Significantly,
what constitutes . . . “reasonable expectations” based upon “norms of
conduct” and employer representations, is a question of fact for the jury,
thereby defeating any resolution by summary judgment. . . . However,
before these expectations can be “reasonable,” they must satisfy a certain
threshold of objectivity.
Id. (citations omitted). Oral representations made by an employer may be
sufficient to overcome the presumption of termination “at-will.” Kestenbaum v.
Pennzoil Co., 766 P.2d 280, 284-85 (N.M. 1988). Although an employer is not
“obligated by vague and ambiguous references to long-term employment,”
Kiedrowski, 893 P.2d at 472 (citing Hartbarger, 857 P.2d at 785), there is nothing
vague or ambiguous about the alleged statement by Carol Kessler that the
appellant could only be dismissed “for cause.” Appellant’s App. at 122. Viewing
the evidence in the light most favorable to the appellant, we find that a genuine
issue of material fact exists as to whether Kessler’s statement gives rise to an
implied contract term requiring Amtech to have cause for terminating its
employment relationship with Baucom. Nevertheless, summary judgment is
-13-
appropriate because the record does not demonstrate a genuine issue of material
fact concerning the existence of proper cause for the appellant’s dismissal. 4
As discussed above, the appellant concedes that there were ongoing
disputes concerning the accuracy of his reports, that he had missed managerial
meetings, and that he had made grossly inappropriate comments concerning safety
on the manufacturing floor. Under New Mexico law, Amtech need only have had
“reasonable grounds to believe that sufficient cause existed to justify [the
appellant’s] termination.” Kestenbaum, 766 P.2d at 287 (citations omitted). The
record in this case is replete with undisputed evidence of the appellant’s deficient
job performance. Accordingly, we find that summary judgment was appropriately
granted because the appellant does not raise a genuine issue of material fact
concerning the existence of cause for his termination.
B
Baucom also claims that Amtech breached its employment contract with
him by failing to comply with the progressive discipline policy outlined in
Amtech’s employee handbook. (App. at 241.) Under New Mexico law, if an
4
The appellant advances alternate grounds of promissory estoppel and negligent
misrepresentation to establish that he could only be terminated for cause. Because we
find that the appellant fails to raise a genuine issue of material fact concerning the
existence of cause, we hold that summary judgment for Amtech was appropriate on those
claims as well. Further, because we affirm summary judgment against the appellant on
the ground of negligent misrepresentation, we decline to consider whether damages for
emotional distress are available for that tort under New Mexico law.
-14-
employer “choose[s] to issue a policy statement, in a manual or otherwise, and, by
its language or by the employer’s actions, encourages reliance thereon, the
employer cannot be free to only selectively abide by it. Having announced a
policy, the employer may not treat it as illusory.” Newberry v. Allied Stores, Inc.,
773 P.2d 1231, 1234 (N.M. 1989) (internal quotations omitted). Assuming that
Baucom had a contractual right to compliance with the progressive discipline
policy, we nevertheless hold that summary judgment is appropriate.
Amtech’s policy explicitly states that any step may be “skipped depending
on the case history and/or the seriousness of the deficiency or offense.”
Appellant’s App. at 241. Although Baucom produces evidence that Amtech had
always chosen to follow each step in the past, Amtech’s mere unspoken custom of
not skipping any step in the discipline policy is not enough, by itself, to impose a
duty on Amtech to continue that practice. Cf. Hartbarger, 857 P.2d at 785 (noting
that evidence that employer normally fired employees only for cause does not in
itself create “for cause” employment). The appellant has produced no evidence
indicating that the language of the progressive discipline provision is not
controlling. Here, the record chronicles the difficulties with Baucom’s
performance for a year prior to his termination. There is evidence that Baucom
had been warned verbally (App. at 205) and in writing (App. at 210-13), and that
-15-
Baucom’s termination came on the heels of egregious statements concerning
safety on the manufacturing floor.
On these facts, Amtech was not obligated under the policy to suspend
Baucom before terminating the employment relationship. The district court
properly granted summary judgment dismissing Baucom’s breach of contract
claim.
C
Finally, Baucom argues that Amtech breached its implied duty of good faith
and fair dealing by failing to comply with the progressive discipline policy and
for terminating him without cause. Because we hold that the appellant has failed
to raise a genuine issue of material fact with respect to the existence of cause or
Amtech’s compliance with its progressive discipline policy, we affirm the district
court’s summary judgment on this claim as well.
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-16-