F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 9 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ERNEST P. WIEMER,
Plaintiff-Appellant,
No. 02-3055
v. (D.C. No. 00-CV-1504-MLB)
(D. Kan.)
LEARJET INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and McCONNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
In this age discrimination case, plaintiff Ernest P. Wiemer appeals the
district court’s grant of summary judgment in favor of his former employer,
*
This order and judgment is not binding precedent, except under the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.
defendant Learjet Inc. (Learjet). Because plaintiff’s evidence did not raise a
genuine factual dispute as to whether Learjet’s proffered reason for his
termination was a pretext for age discrimination, we affirm.
Plaintiff, at age fifty-nine, was employed as a senior financial analyst at
Learjet for thirty-seven days. Upon learning of the program analyst opening
through his daughter, plaintiff contacted Learjet and was informed that the
position involved budgets, forecasts, variances, and similar tasks. On May 4,
1998, he was interviewed by Bob Wassinger, a finance manager; David Erickson,
a senior financial analyst; and Mark Herbert, the finance director. Plaintiff was
also interviewed by Tom Burian, who later became his manager. After the
interviews, the managers all approved of plaintiff. The ultimate decision to hire
plaintiff was made by Mark Herbert, subject to review by Chris Crawshaw, the
vice president of finance.
During the interview with finance director Herbert, plaintiff alleges he felt
that Herbert was threatened by him and was out to get him. Before accepting the
position, plaintiff asked to meet with Crawshaw. Plaintiff alleges that he
informed Crawshaw of his concerns about Herbert, and that Crawshaw told him
Herbert was not performing well and would soon be replaced, perhaps by
plaintiff. Plaintiff then accepted the job offer, and began work on July 15, 1998.
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The position for which plaintiff was hired involved extensive computer
work, requiring advanced spreadsheet skills. After a week of orientation, when
plaintiff began receiving accounting assignments, it became apparent that he
lacked the computer skills necessary to perform his duties. After sending him to
several different training courses, the finance department management began to
doubt plaintiff’s ability to do the job for which he was hired. Observations by
David Erickson, Tom Burian, and Mark Herbert, indicated they had significant
concerns regarding plaintiff’s skills and work product. See Aplee’s App. at
89-96, 169–172, 175-78. After discussing the matter with Tom Burian, Mark
Herbert decided to terminate plaintiff. The decision was approved by Chris
Crawshaw, and plaintiff was terminated on August 21, 1998.
Plaintiff filed a discrimination charge with the Kansas Human Rights
Commission (KHRC), alleging that he was terminated because of his age in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§§ 621-634. The KHRC conducted an investigation and returned a finding of no
probable cause. Plaintiff appealed this determination to the Equal Employment
Opportunity Commission, which adopted the KHRC’s findings and issued a
right-to-sue letter. Plaintiff then filed this discrimination action in the district
court. Defendant moved for summary judgment, which was granted by the district
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court upon a finding that plaintiff failed to raise a triable issue as to whether
Learjet’s proffered reason for its decision was a pretext for age discrimination.
We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court. Revell v. Hoffman ,
309 F.3d 1228, 1232 (10th Cir. 2002), cert. denied , 124 S. Ct. 83 (2003). A
district court properly grants summary judgment if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). “To determine whether a dispute is genuine, we
must consider whether a reasonable jury could return a verdict for the nonmoving
party.” Revell , 309 F.3d at 1232 (further quotation omitted). We look to the
applicable substantive law when evaluating whether a fact is material. Id.
Further, “it is not enough that the nonmovant’s evidence be ‘merely colorable’ or
anything short of ‘significantly probative.’” Id. (quoting Comm. for the First
Amendment v. Campbell , 962 F.2d 1517, 1521 (10th Cir. 1992)) (further quotation
omitted).
In discriminatory discharge cases, once a plaintiff makes a prima facie
case, and the defendant advances a legitimate, nondiscriminatory reason for its
decision, the plaintiff must produce either direct evidence of discrimination or
indirect evidence that the defendant’s proffered reason was a pretext for
discrimination. Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir.
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2001). “Pretext can be shown by such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Hardy v. S.F. Phosphates Ltd. Co., 185
F.3d 1076, 1080 (10th Cir. 1999) (further quotation omitted).
Plaintiff argues that in evaluating his showing of pretext, the district court
failed to consider his affidavit and the testimony of Will Evans, the finance
department manager through whom plaintiff’s daughter learned of the opening.
He argues that this evidence was sufficient to raise a factual dispute regarding
Learjet’s true motivation. Will Evans testified that plaintiff had successfully
completed a project for him which required basic Excel skills, and that he thought
plaintiff should have been given more training instead of being terminated.
Aplt’s App. at 97-98, 130. Plaintiff’s affidavit detailed his past finance
experience, but did not refute the allegation that defendant was disappointed by
his lack of spreadsheet skills. See id. at 32-43. Plaintiff argues he cast doubt on
Learjet’s proffered explanation by presenting “overwhelming evidence that his
prior experience as a financial analyst and related positions had resulted in
computer skills which, in most important ways, [were] clearly superior to those
responsible for his discharge.” Aplt’s Br. at 11.
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We have held that, in evaluating the sufficiency of a plaintiff’s pretext
evidence, it is the employer’s perception of the plaintiff’s abilities that is
relevant, not the plaintiff’s view of his own qualifications. Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (“[A] challenge of
pretext requires us to look at the facts as they appear[ed] to the person making the
decision to terminate [the] plaintiff.”); Furr v. Seagate Tech., Inc., 82 F.3d 980,
988 (10th Cir. 1996) (“It is the manager’s perception of the employee’s
performance that is relevant, not plaintiff’s subjective evaluation of his own
relative performance.”).
Even if Learjet’s assessment of plaintiff’s abilities was incorrect, this does
not show pretext unless there is reason to believe the employer failed to exercise
its business judgment in good faith. See McKnight v. Kimberly Clark Corp.,
149 F.3d 1125, 1129 (10th Cir. 1998) (“An articulated motivating reason is not
converted into pretext merely because, with the benefit of hindsight, it turned out
to be poor business judgment. The test is good faith belief.”) (citation omitted).
In fact, plaintiff himself admitted that his Excel skills were weak and that he was
having difficulty with the work assigned to him. See Aplee’s App. at 42-52;
Aplt’s App. at 33-37.
Plaintiff argues that he showed pretext because his years of experience in
finance entitled him to “the opportunity . . . to familiarize himself with . . . the
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Excel program,” Aplt’s Br. at 11, and because defendant should have been
required to prove that “a critique [of his deficiencies] was made in writing and
presented to Wiemer,” id. at 9. This argument “merely establishes that
[plaintiff’s] view of appropriate management contrasts with that of [Learjet’s]
supervisors,” and does not establish that Learjet’s proffered reason was a pretext
for age discrimination. Selenke, 248 F.3d at 1261. Further, plaintiff’s acceptance
of Learjet’s offer was specifically conditioned on his agreement that his
employment would be “at will,” and could be “terminated at any time, for any
reason.” Aplee’s App. at 87.
Will Evans’ testimony did not raise a triable issue of pretext because he
admitted the project done for him by plaintiff was “fairly simple,” requiring only
basic skills, and that he had no “facts” to support his belief that plaintiff was
terminated based on age, other than his belief that inadequate Excel skills was not
a sufficient ground for termination. Aplt’s App. at 99, 130. We conclude the
district court did not err in granting summary judgment in favor of Learjet on
plaintiff’s ADEA claim.
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The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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