F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 21 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GERALD A. VINCENT,
Plaintiff-Appellant,
v. No. 99-4139
(D.C. No. 97-CV-0237-K)
PHILIPS ELECTRONICS NORTH (District of Utah)
AMERICA CORPORATION,
formerly known as BTS Broadcast
Television Systems, Inc.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY and PORFILIO, Circuit Judges, and ALLEY, Senior District
Judge. **
Plaintiff-Appellant Gerald A. Vincent appeals from a summary judgment
entered against him regarding his age discrimination claims under the Age
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
**
The Honorable Wayne E. Alley, Senior District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
Discrimination in Employment Act, 29 U.S.C. §621 et seq. (“ADEA”). We
exercise jurisdiction under 28 U.S.C. §1291 and affirm.
Appellant presents two issues for decision. One issue challenges the
district court’s ruling that no genuine issue of material fact exists regarding a
prima facie case of age discrimination or pretext. The second issue concerns the
district court’s exclusion of evidentiary matter.
The standards of appellate review are well settled. We review a summary
judgment decision de novo, applying the same legal standard used by the district
court. Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998),
cert. denied, 526 U.S. 1039 (1999); Sprague v. Thorn Americas, Inc., 129 F.3d
1355, 1360 (10th Cir. 1997). A moving defendant is entitled to summary
judgment if the factual record and inferences favorable to the plaintiff “could not
lead a rational trier of fact to find for the [plaintiff].” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the plaintiff (who
bears the burden of proof) lacks sufficient evidence on an essential element of a
claim, then other factual issues concerning the claim are immaterial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review evidentiary rulings for
abuse of discretion. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264,
1268 (10th Cir. 1998). Applying these standards, we find no reversible error.
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First, we have carefully reviewed the appellate record and find ourselves in
complete agreement with the district court’s decision to grant summary judgment
on Appellant’s age discrimination claim.
To establish a prima facie case of age discrimination, Appellant must show:
(1) he was a member of the protected age group, over age 40; (2) he was qualified
for the position he sought; (3) he was not hired; and (4) a younger person was
hired. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The
district court found based on the evidence before it that Appellant had not made a
prima facie case of age discrimination because he was not qualified for two of the
three positions he sought, i.e. Director of Operations and Technical Services
Manager. The district court observed that Appellant did not have the requisite
four-year college degree nor did he have the experience required by the minimum
job qualifications. We agree with the district court .
Appellant argues the district court disregarded genuine issues of fact that
raised a question as to his qualifications. Appellant contends that Russ Ence,
Appellee’s Human Resources Manager, indicated Appellant was qualified for the
Director of Operation’s position, and would be considered for the position.
Appellant claims he presented evidence that he had identical responsibilities in
his previous employment with Appellee and experience while working for other
firms in similar positions.
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We find the district court’s ruling to be correct even in light of Appellant’s
arguments. First, Ence did not hire or interview Appellant for the position.
Rather, an outside company compiled the candidates and Appellant was not a
candidate. Second, Appellant’s background and experience with Appellee and
other companies did not include experience in the “turn-key and outside assembly
vendor management” and “supplier management program” field. This was a
significant change of product and format from Appellant’s traditional
manufacturing experience. Appellant did not provide the district court with any
evidence he was qualified for the position concerning this new technology.
Next, in support of his argument he was qualified for the Technical
Services Manager position, Appellant contends the individual hired for the
position lacked the same experience he lacked for the position, i.e. a working
knowledge of the current products. Although Appellant cites this in support of
his argument he was qualified for the position, it actually supports the district
court’s ruling he was not qualified for the position. Even assuming the candidate
chosen for the position did not have the working knowledge of the current
product, this does not somehow render Appellant qualified for the position.
Appellant’s self-serving argument he was qualified for the position in light of the
change in technology is insufficient to create a genuine issue of material fact.
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Appellant cites statements from management that implied he was qualified
for the Director of Operations and Technical Services Manager positions.
However, these statements were not specific nor made at the time of hiring for the
positions. Additionally, Appellant challenges Appellee’s description of the
qualifications necessary for the positions, but provides no evidence to dispute the
cited qualifications. Accordingly, the district court’s ruling that Appellant was
not qualified for the Director of Operations or Technical Services Manager
positions was proper, and Appellant failed to establish a prima facie case of age
discrimination regarding these two positions.
Regarding the third position, Senior Buyer, the district court assumed for
purposes of summary judgment that Appellant had met his burden of proof,
demonstrating he was qualified for the position. Nonetheless, the district court
appropriately granted Appellee’s motion for summary judgment because
Appellant failed to establish the Appellee’s reasons for not hiring him were
merely pretextual. Cone v. Longmont United Hospital Assoc., 14 F.3d 526, 529
(10th Cir. 1994). See also Bullington v. United Air Lines, Inc., 186 F.3d 1301,
1315 (10th Cir. 1999)(evidence plaintiff was only similarly qualified or not as
qualified as the selected candidate does not raise evidence of pretext).
Appellant claims he has established pretext through a memo drafted in 1992
by Appellee’s sister company in Germany, indicating people over age 45 are not
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high potentials for promotions (the “Ismar Memo”), and that this memo was
applied in the United States. Further, Appellant’s evidence of pretext is based on
Appellee’s several reasons for not hiring him, and one interviewer’s statement to
him that he was overqualified. 1
The district court correctly determined the Ismar Memo was not admissible
evidence in granting Appellee’s motion in limine because its prejudice
outweighed its probative value. As discussed by the district court, the Ismar
Memo was drafted in 1992, prior to Appellant’s application for these positions.
The memo was drafted in Germany, not the United States. Moreover, Appellant
did not show that any of the individuals charged with hiring for the three
positions received the Ismar Memo or even knew of its existence. The motion in
limine was properly granted based upon the evidence before the district court.
Next, Appellant contends his termination in 1990 from Appellee when it
was operating through a different joint venture establishes pretext because
management told him he was “getting up in years.” The district court properly
excluded any evidence of Appellant’s prior employment with Appellee not
relating to his qualifications. In 1990, Appellee operated pursuant to a different
1
This comment does not raise an issue of pretext as the interviewer indicated
Appellant was a top candidate for the position. She did not tell him he was
overqualified and that was the reason for not hiring him. This isolated comment
has no nexus to Appellant’s argument of pretext. See e.g. Cone v. Longmont
United Hosp. Assoc. , supra , 14 F.3d at 531.
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joint venture and the individual who allegedly made the ageist comment was not
responsible for hiring any one of the three positions Appellant sought.
Finally, Appellant challenges the district court’s granting of Appellee’s
motion in limine that excluded the Utah Anti-Discrimination Division
determination of age discrimination and the testimony of its personnel. The
district court excluded the determination because it lacked formal procedures,
provided for no cross-examination of witnesses and could suggest to a jury a
resolution of the case. The determination was based on the Ismar Memo and the
testimony of two employees that the memo had world-wide application. The
investigator of the determination could not remember what, if any, other evidence
she relied upon in making the determination. However, she did not determine
whether the Ismar Memo or its policies were in effect in or after 1995, even
though the two employees no longer worked for Appellee. Further, there is no
evidence the individuals charged with hiring Appellant knew of the memo’s
existence or followed any such policy. The district court correctly granted
Appellee’s motion in limine.
We have reviewed the parties’ summary judgment briefs, the district court’s
decision, the parties’ appellate briefs, and the relevant record. Finding no error,
we affirm for substantially the same reasons stated in the district court’s March 1,
1999 Order.
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The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Wayne E. Alley
Senior District Judge
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